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Full text of "A treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant"

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UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 




l-iJj'Av.':^-'-; 



::.r..«nfiii)ir^> 



I^iyf^ fo*^ y &^< 



A TREATISE 



ON THE 



LAW OF THE DOMESTIC RELATIONS; 



EMBRACING 



HUSBAND AND WIFE, PARENT AND CHILD, GUARDIAN 

AND WARD, INFANCY, AND MASTER 

AND SERVANT. 



BY 



JAMES SCHOULER, 

AUTHOK OF TREATISES ON " THE LAW OF PERSONAL PROPERTY," " BAILMENTS, 
INCLUDING CARRIERS," ETC. 



THIRD EDITION. 



BOSTON: 

LITTLE, BROWN, AND COMPANY- 

1882. 






Entered according to Act of Congress, in tlio year 1870, 

By James Schouler, 

In the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in the year 1874, 

By James Schouler, 

In the Office of the Librarian of Congress, at Washington, D. C. 

Entered, according to Act of Congress, in the year 1882, 

By James Schouler, 

In the Office of the Librarian of Congress at Washington, D. C. 






U^•IVERSITY Press : 
John Wilson and Son, Cambridge. 



PREFACE TO THE THIRD EDITION. 



The present work'has been eighteen months out of print ; 
but the author trusts that the improvements here introduced 
will compensate for the delay of this new edition. 

Every part of the work has been personally revised by the 
author. The cases reported in England and the United 
States since the previous edition have been incorporated with 
the text or foot-notes ; many of the decisions here cited hav- 
ing been published daring the current year, and while these 
sheets were passing through the printer's hands. Follow- 
ing the late custom, the author has also divided his mate- 
rials by sections, inserting head-lines for the convenience of 
the reader. The text is still kept within the compass of a 
single volume ; but " Husband and Wife," which is here some- 
what abridged, will be found treated by the author at length 
in a special volume, devoted to that subject, which his pub- 
lishers issued a few months ago. 

J. S. 

Boston, July 30, 1882. 



PREFACE TO THE FIRST EDITION. 



The purpose of tlie writer, in the present treatise, is to fur- 
nish a clear, accurate, and comprehensive analysis of the law 
of the domestic relations, as administered in England and 
the United States ab the present day. 

To accomplish this purpose, and at the same time not to 
transcend the limits of a single volume, was not easy. It be- 
came necessary to treat of principles rather than details, and 
to avoid matters of local practice altogether. A few topics, 
such as curtesy and dower, which are fully discussed in other 
treatises, have been for the same reason touched upon lightly, 
and the work, on the whole, made elementary in its method 
of treatment, though at the same time practical. The lawyer 
who misses elaborate head-notes and subdivisions will yet 
find assistance in a full index and table of contents : and 
what has been lost in this respect is gained in subject-matter. 
Especial pains have been taken to present in this work such 
topics, pertaining to the general subject, as were not easily 
accessible elsewhere. 

The writer has freely consulted the valuable law libraries of 
the Suifolk Bar, at Boston, and of Congress, at Washington, 
— the latter being the most extensive in this country. Among 
works which have afforded him the greatest assistance are 
Macqueen on Husband and Wife, Peachey on Marriage Settle- 
ments, Macpherson on Infancy, and Smith on Master and Ser- 
vant, — treatises of acknowledged merit in England, though 
little known in the United States. Other books, more familiar. 



vi PREFACE TO THE FIRST EDITION. 

which need not be enumerated at length, furnished valuable 
material in certain parts of this work, as the foot-notes suffi- 
ciently indicate. The writer deems it just to himself to add 
that the time-honored treatise of Judge Reeve has been found 
of little service, the radical changes of the last fifty years 
rendering new labor, new materials, and a new plan of treat- 
ment absolutely essential to meet the growing wants of the 
age. 

If, on the whole, the present work is found to answer its 
purpose, in the judgment of his professional brethren, the 
writer will cheerfully acknowledge such errors and blemishes 
as the judicious critic may kindly point out. 

JAMES SCHOULER. 

Washingtox, D. C, April 30, 1870. 



TABLE OF CONTENTS. 



PART I. 

INTRODUCTORY CHAPTER. 

Page 

§ 1. Domestic Relations defined; Earlier Writers 3 

§ 2. Plan of Classification, &c 5 

§ 3. General Characteristics of the Law of Family 8 

§ 4. Law of Husband and Wife now in a Transition State ; Various 

Property Schemes stated 9 

§ 5. Common-Law Property Scheme 10 

§ 6. Civil-Law Property Scheme 11 

§ 7. Community Property Scheme 13 

§ 8. The Recent Married Woman's Acts 17 

§ 9. Marriage and Marital Influence 17 

§ 10. General Conclusions as to the Law of Husband and Wife . . 18 

§ 11. Remaining Topics of the Domestic Relations ; Modern Changes 20 



PART II. 

HUSBAND AND WIFE. 
CHAPTER I. 



MARRIAGE. 

§ 12. Definition of Marriage 22 

§ 13. Marriage more than a Civil Contract 22 

§ 14. Marriages Void and Voidable 24 

§ 15. Essentials of Marriage 26 

§ 16. Disqualification of Blood ; Consanguinity and Affinity ... 27 



VUl TABLE or CONTENTS. 

Pago 

§ 17. Disqualification of Civil Condition; Race, Color, Social Rank, 

Religion 29 

§ 18. Mental Capacity of Parties to a Marriage 30 

§19. Physical Capacity of Parties to Marriage; Impotence, &c. . . 33 

§ 20. Disqualification of Infancy 34 

§21. Disqualification of Prior Marriage undissolved; Polygamy; 

Bigamy 36 

§ 22. Same Subject; Impediments following Divorce 37 

§ 23. Force, Fraud, and Error, in Marriage 38 

§24. Force, Fravid, and Error; Subject continued 42 

§ 25. Essential of Marriage Celebration 43 

§§ 26, 27. Same Subject; Informal Celebration 44, 49 

§§28,29. Same Subject ; Formal Celebration 51,54 

§ 30. Consent of Parents and Guardians 55 

§31. Legalizing Defective Marriages; Legislative Marriage ... 56 

§ 32. Restraints upon Marriage 57 

CHAPTER II. 

EFFECT OF MARRIAGE ; PERSON OF THE SPOUSE. 

§ 33. Effect of Marriage ; Order of Legal Investigation .... 58 
§ 34. Person of the Spouse ; Coverture Principle ; Husband Head of 

Family 59 

§ 35. Duty of Spouses to adhere or live together 61 

§ 36. Breach by Desertion, &c. ; Duty of making Cohabitation Tol- 
erable 62 

§ 37. The Matrimonial Domicile 63 

§ 38. Same Subject ; Husband's Right to establish Domicile ... 64 

§ 39. Domicile relative to Alien and Citizen 66 

§ 40. Change of Wife's Name by Marriage ........ 66 

§ 41. Right of one Spouse to the other's Society; Suit for Entice- 
ment 67 

§ 42. Husband's Duty to render Support 69 

§ 43. Wife's Duty to render Services 69 

§ 44. Right of Chastisement and Correction 69 

§ 45. Husband's Right to Gentle Restraint 71 

§ 46. Regulation of Household, Visitors, &c 72 

§ 47. Custody of Children 73 

§ 48. Remedies of Spouses against each other for Breach of Matri- 
monial Obligations 74 

§ 49. The Spouse as a Criminal; Private Wrongs and Public Wrongs 

compared 75 

§ .50. Presumption of Wife's Coercion, how far carried 75 

§ 51. Offences against the Property of One Another 77 

§ 52. Mutual Disability to Contract, Sue, &c 77 

§ 53. Mutual Disqualification as Witnesses 78 



TABLE OF CONTENTS. IX 

CHAPTER III. 

KFFECT OP COVERTURE UPON THE WIFE's DEBTS ANT) CONTRACTS. 



§ 54. Genera] Inequalities of Covertnve at Common Law .... 81 

§ 55. Exception where Wife is treated as Feme Sole 83 

§§ 5G, 57. Husband's Liability for Wife's Antenuptial Debts . 83, 85 

§ 58. AVife's General Disability to Contract 86 

§ 59. Wife's Disability to Contract extending beyond Coverture . . 88 

§ 60. Wife binds Husband as Agent 89 

§ GL Wife's Necessaries; Foundation of Husband's Obligation . . 90 

§62. Wife's Necessaries; Living together or separate 93 

§§ 63-65. AVife's Necessaries where Spouses live together . . 94, 97, 99 
§§ 66, 67. Wife's Necessaries where Spouses live apart . . . 100, 104 
§ 68. Wife's Necessaries where Spouses live apart; Mutual Separa- 
tion 105 

§ 69. Wife's Necessaries where Spouses live apart; Presumptions; 

Good Faith 106 

§70. AVife's Necessaries; Summary of Doctrine 107 

§71. Wife's Necessaries; Miscellaneous Points 109 

§ 72. Wife's General Agency for her Husband Ill 

§ 73. Effect of Marriage of Debtor and Creditor 113 



CHAPTER IV. 

EFFECT OF COVERTURE UPON THE WIFE's INJURIES AND FRAUDS. 

§ 74. General Principle stated 114 

§ 75. Torts by the Wife; Husband and AYife sued together, or Hus- 
band alone; Presumption of Coercion, &c 114 

§76. Torts by Wife which ar6 based on Contract 116 

§ 77. Torts committed upon the Wife 117 

§78. Torts upon the Wife ; Instantaneous Death; Statutes . . . 120 

§79. Torts upon the AVife ; Miscellaneous Points 121 



CHAPTER V. 

EFFECT OF COVERTURE UPON THE WIFE's PERSONAL PROPERTY. 

§ 80. Wife's Personal Property in General; Marriage a Gift to the 

Husband 122 

§ 81. Earnings of AA'"ife vest in Husband 123 

§ 82. AVife's Personal Property in Possession 124 

§ 83. Wife's Personalty in Action 126 



X TABLE OF CONTENTS. 

Page 
§84. Wife's Personalty in Action; Reduction into Possession . . 128 
§ 85. Wife's Personalty in Action ; Wife's Equity to a Settlement . 130 
§ 86. Personal Property held by Wife as Fiduciary; Wife as Execu- 
trix, &c 13] 



CHAPTER VI. 

EFFECT OF COVERTURE UPON THE WIFE'S CHATTELS REAL AND REAL 

ESTATE. 

§§ 87, 88. Husband's Interest in Wife's Chattels Real, Leases, 

&c 132, 135 

§89. Wife's Real Estate ; Husband's Interest 137 

§ 90. Wife's Real Estate; Husband's Right to Convey or Lease . . 141 
§91. Wife's Real Estate; Husband's Mortgage; Waste . . . . 144 
§ 92. Wife's Real Estate; Husband's Dissent to Purchase, &c. ; Con- 
version 144 

§93. Wife's Real Estate ; Husband's Agreement to Convey . . . 145 
§ 94. Wife's Agreement to Convey; Her Conveyance, Mortgage, &c., 

under Statutes 146 

§ 95. Covenants in Wife's Statute Conveyance or Mortgage, &c. . . 149 

§96. Conveyance, &c., of Infant Wife's Lands 151 

§ 97. Distinction between Wife's General and Separate Real Estate 152 

§98. Wife's Life Estate; Joint Tenancy, &c 152 

§ 99. Husband's Freehold Interest in Wife's Land not Devisable by 

Wife 153 



CHAPTER VII. 

COVERTURE MODIFIED BY EQUITY AND RECENT STATUTES. 

§ 100. Prevalent Tendency to equalize the Sexes; Marriage Rela- 
tion affected 153 

§ 101. Modern Changes in Married Women's Rights; How to be 

Studied 155 

§ 102. Modern Equity and Statute Doctrine ; England and the 

United States 155 

CHAPTER VTII. 

THE wife's SEPARATE PROPERTY ; ENGLISH DOCTRINE. 

§ 103. Origin and Nature of Separate Estate in Chancery . . . .156 
§ 104. Whether Appointment of a Trustee is Necessary . . . .158 
§ 105. Coverture applies Prima Facie ; How Separate Estate is 

created 158 



TABLE OF CONTENTS. Xl 

Page 

§ 106. Separate Use binds Pioduce of Fund IGl 

§ 107. Separate Use exists only during Marriage; Exceptions; Am- 
bulatory Operation 162 

§ 108. AVife's Right to renounce Separate Use, &c 163 

§ 109. Separate Use and the Marital Obligations 164 

§ 110. Clause of Restraint upon Anticipation 165 

§ 111. Separate Use in Common-Law Courts; English Married 

Womens' Act 166 



CHAPTER IX. 

THE wife's separate PROPERTY ; AMERICAN DOCTRINE. 

§ 112. Early American Rule 167 

§113. The Late Married Women's Acts; Social Revolution . . .169 
§ 114. Scope of Married Women's Acts; Constitutional Points . . 173 
§ 115. Married Women's Acts as to Antenuptial Property and Ac- 
quisitions from Third Persons 170 

§116. Change of Investment ; Increase and Profits 177 

§ 117. IMethods of Transfer from Third Parties under these Acts . 177 
§ 118. Acquisitions from Husband not so much Favored .... 178 
§ 119. Husband's Control; Mixing Wife's Property or Keeping it 

Distinct 180 

§ 120. Husband as Wife's Trustee in this Connection 182 

§ 120 a. Presumptions as to Separate Property under these Acts . 183 

§ 121. Schedule or Inventory of Wife's Property 184 

§ 122. Statutory and Equitable Separate Property 184 

§123. American Equity Doctrine; Trustee for Separate Property . 185 

§ 124. Equity Doctrine; How Separate Use created 185 

§ 125. Equity Doctrine ; Acquisition by Contract ; Produce and In- 
come 187 

§126. Equity Doctrine; Preserving Identity of Fund 188 

§ 127. Equity Doctrine; Separate Use only in Married State; How 

Ambulatory 188 

§128. Equity Doctrine ; Whether Marital Obligations affected . .189 
§129. Equity Doctrine ; Restraint upon Anticipation 189 

CHAPTER X. 

THE wife's dominion OVER HER EQUITABLE SEPARATE PROPERTY. 

§ 130. General Principle of Wife's Dominion 190 

§ 131. Wife, unless restrained, has Full Power to dispose .... 191 

§ 132. Same Principle applies to Income 191 

§ 133. Technical Difficulties as to disposing of Real Estate . . . 192 
§ 134. Liability of Separate Estate on Wife's Engagements; Eng- 
lish Doctrine 192 



Xll TABLE OF CONTENTS. 

Page 

§135. The Same Subject; Latest English Doctrine 196 

§ 136. Dominion and Liability of Wife's Separate Estate; American 

Doctrine 197 

§ 136 a. Property with Power of Appointment . 199 

§ 137. Wife's Right to bestow upon Husband, bind for his Debts, 

&c 200 

§ 138. Concurrence of Wife's Tnastee, whether Essential .... 201 
§ 139. Whether Wife must be specially restrained under the Trust . 202 
§ 140. Wife's Participation in Breach of Trust with Husband or 

Trustee 203 

§141. Income to Husband ; One Year's Arrears 203 

CHAPTER XI. 

THE wife's dominion OVER HER STATUTORY SEPARATE PROPERTY. 

§ 142. Dominion under Married AV omen's Acts in General . . . 204 
§ 143. New York Rule as to Wife's Charge not Beneficial .... 204 
§144. Combined Tests; Benefit and Express Intention .... 207 
§ 145. Whether Wife may bind as Surety or Guarantor .... 208 
§ 146. Inquiry into Consideration Pertinent; Promissory Note, Bond, 

&c 209 

§ 147. Equity charges Engagement on General as well as Specific 

Property 210 

§148. Married Woman's Executory Promise; Purchase on Credit . 211 
§ 149. Married Woman's Ownership of Stock; Employment of 

Counsel 212 

§ 150. Joinder of Husband; Wife's Conveyances and Contracts . 213 
§151. Improvements, Repairs, &c., on Wife's Lands; Mechanics' 

Liens 215 

§ 152. Mortgage of Wife's Lauds 216 

§153. Wife's Separate Property ; Husband as Managing Agent . . 216 
§ 154. Husband as Managing Agent; Services, &c. ; Husband's Cred- 
itors 217 

§ 155. Husband's Dealings with Wife's Property; Gift, Fraud, Use 

of Income, &c 219 

§ 156. Married Woman as Trustee 222 

§157. Tendency as to Wife's Binding Capacity; her Estoppel . .222 
§ 158. Proceedings for charging Wife's Separate Estate .... 223 
§ 159. English Married Women's Act; Wife's Disposition . . . 224 

CHAPTER XII. 

THE wife's PIX-MONEY, SEPARATE EARNINGS, AND POWER TO TRADE. 

§ 160. The Wife's Pin-Money 225 

§ 161. Wife's Housekeeping Allowance 226 



TABLE OF CONTENTS. XIU 

Pago 
§ 162. Wife's Earnings belong to the Husband; Legislative Changes, 

&c 226 

§ 163. Wife's Power to Trade; Earlier English Rules 228 

§ 164. Wife's Power to Trade; American Equity Rule 230 

§ 165. Conclusion from English and American Decisions . . . .231 
§ 166. Enlargement of Wife's Power to Trade under Recent Stat- 
utes 232 

§ 167. Wife's Trading Liabilities under American Statutes . . . 233 

§168. Wife's Trade; Husband's Participation 231 

§ 169. Wife as Copartner with Husband or Others 237 

§ 170. Civil-Law Doctrine of Separate Trade . 239 

CHAPTER XIII. 

ANTENUPTIAL SETTLEMENTS. 

§ 171. Nature of Marriage Settlements 240 

§ 172. Distinguished from Promises to Marry under Statute of 

Frauds 240 

§ 173. Marriage the Consideration which supports Antenuptial 

Settlements 241 

§ 174. How far this Support extends 242 

§ 175. Settlement Good in Pursuance of Written Agreement . . . 244 

§ 176. Form of Antenuptial Settlements 245 

§ 177. Marriage Articles 245 

§ 178. Marriage Settlements by Third Persons 247 

§ 179. Effect of Statute of Frauds 247 

§ 180. General Requirements, Trustee, &c 248 

§181. Secret Settlement before Marriage; Fraud of a Spouse . . 248 

§ 182. Reforming Marriage Settlements; Portions, &c 250 

§ 183. Equity corrects Mistakes, or sets aside; Fraud and Improvi- 
dence 251 



CHAPTER XIV. 

POSTNUPTIAL SETTLEMENTS ; GIFTS AND GENERAL TRANSACTIONS 
BETWEEN SPOUSES. 

§ 184. Postnuptial Settlements distinguished from Antenuptial; 

Gifts between Spouses 252 

§ 185. Postnuptial Settlements as to Creditors and Purchasers; Stat- 
utes 13 Eliz. and 27 Eliz 253 

§ 186. Same Subject; Statute 13 Eliz.; Bankrupt Acts 254 

§ 187. Same Subject; Stat. 27 Eliz 256 

§ 188. Same Subject; Settlement upon Valuable Consideration . . 259 
§§ 189, 190. Postnuptial Settlements as between the Spouses . 261, 262 



XIV TABLE OF CONTENTS. 

Page 

§ 191. General Transactions between Husband and Wife .... 264 

§ 192. Transfer of Note from one Spouse to the Other ; Conveyance 265 

§193. Conveyances or Transfers to Husband and Wife; Effect . . 265 

§ 194. Questions of Resulting Trust between Husband and Wife . 266 

§ 195. Insurance upon Husband's Life 267 



CHAPTER XV. 

DEATH OF THE WIFE; RIGHTS AND LIABILITIES OF THE SURVIVING 

HUSBAND. 

§ 196. Husband's Right to Administer 267 

§197. The Same Subject; Assets for Wife's Debts 268 

§ 198. Surviving Husband's Rights in Wife's Personal Property . 269 

§ 199. Husband's Obligation to bury Wife; Rights corresponding . 272 

§ 200. Death of Husband pending Settlement of Wife's Estate . . 273 

§ 201. Rights in Wife's Real Estate; Tenancy by the Curtesy . . 274 

§ 202. Tenancy by the Curtesy ; Subject continued 275 

§203. Husband's Claims against Wife's Real Estate; Improve- 
ments, &c 276 

§ 203, note. Wills of Married Women 276 



CHAPTER XVI. 

DEATH OF THE HUSBAND; RIGHTS AND LIABILITIES OF THE SURVIV- 
ING WIFE. 

§ 204. Widow's Right to Administer 277 

§ 205. Widow's Distributive Share in Personalty 277 

§ 206. Widow's Waiver of Provision of Will 279 

§ 207. Widow's Allowance 279 

§ 208. Widow's Paraphernalia 279 

§ 209. Equity of Redemption and Exoneration in Mortgages . . . 283 

§ 210. Controversies between Administrator and Widow .... 283 

§ 211. Widow's Obligation to bury Husband 284 

§ 212. Effect of Husband's Death upon Wife's Contracts .... 285 

§ 213. The Widow's Dower 286 

§214. Homestead Rights 287 



CHAPTER XVn. 

SEPARATION AND DIVORCE. 

§ 215. Deed of Sepai-ation ; General Doctrine 288 

§216. The Same Subject; English Rule 289 



TABLE OF CONTENTS. XV 



§ 217. The Same Subject; American Rule 291 

§ 218. The Same Subject; what Covenants are upheld 293 

§219. Abandonment; Rights of Deserted AVife 296 

§ 220. Divorce Legislation in General 297 

§ 221. Effect of Absolute Divorce upon Property Rights .... 298 

§ 222. Effect of Partial Divorce upon Property Rights 300 

§ 222, note. Coniiict of Laws Relating to Marriage, Divorce, &c. . 301 



PART III. 

PARENT AND CHILD. 
CHAPTER L 

OF LEGITIMATE CHILDREN IN GENERAL. 

§223. Parent and Child in General; Children, Legitimate and Ille- 
gitimate 303 

§ 224. Legitimate Children in General 304 

§ 225. Presumption of Legitimacy 305 

§ 226. Legitimation of Illicit Oifspring by Subsequent Marriage . 308 
§ 227. Legitimation by Subsequent Marriage ifot favored in England 310 

§227a. Legitimacy of OfEspring born after Divorce 312 

§ 228. Legitimacy in Marriages Null but Bona Fide contracted . . 312 

§ 229. Legitimation by the State or Sovereign 312 

§ 230. Domicile of Children 313 

§ 231. Conflict of Laws as to Domicile and Legitimacy 314 

§ 232. Parental Relation by Adoption 316 

CHAPTER IL 

THE DUTIES OF PARENTS. 

§ 233. Leading Duties of Parents enumerated 317 

§234, Duty of Protection; Defence; Personal and Legal . . .■ . 317 

§ 235. Duty of Education 318 

§ 236. Duty of Maintenance in General 321 

§ 237. Maintenance at Common Law; Statute Provisions .... 322 
§ 238. Maintenance, &c., in Chancery; Allowance from Child's For- 
tune 325 

§ 239. Chancery Maintenance as to Mother; Separated Parents, &c. 329 

§240. Chancery Maintenance ; Income; Fund 330 



XVI TABLE OF CONTENTS. 

Page 
§241. Whether Child may bind Parent as Agent; Child's Neces- 
saries 331 

§ 242. Duty of providing a Trade or Profession 335 

CHAPTER III. 

THE RIGHTS OF PARENTS. 

§ 243. Foundation of Parental Rights 335 

§244. Parental Right; Chastisement; Indictment for Cruelty, &c. . 335 

§ 245. Parental Custody ; Common-law Rule ; English Doctrine . . 337 

§ 246. Chancery Jurisdiction in Custody ; Common Law overruled . 338 

§ 247. Custody; English Rule; Statute 341 

§ 248. Parental Custody; American Rule 341 

§ 249. Custody under Divorce and other Statutes 343 

§250. Custody of jSIinors; Child's own Wishes 345 

§ 251. Contracts transferring Parental Rights 345 

§§ 252, 252 a. Right of Parent to Child's Labor and Services . 347, 348 

§ 253. Clothing, Money, &c., given to the Child; Right to Insure . 351 

§ 254. Mother's Rights to Child's Services and Earnings .... 352 

§ 255. Parent has no Right to Child's General Property .... 352 

§ 256. Constitutional Right of Legislature to interfere with Parent . 353 



•CHAPTEPv IV. 

THE parent's rights AND LIABILITIES FOR THE CHILD'S INJURIES 
AND FRAUDS. 

§257. Injuries, &c., committed upon or by the Child 353 

§§ 258, 259. Injuries committed upon the Child; Parent's Right to 

sue ... 354, 355 

§ 260. Suit for harboring or enticing away One's Child; Abduc- 
tion, &c 357 

§ 261. Suit for Seduction of a Child 359 

§ 262. Damages in Parental Suits for Injury to the Child .... 364 
§ 263. Parental Liability wliere the Child is the Injuring Party . . 365 



CHAPTER V. 

DUTIES AND RIGHTS OF CHILDREN, WITH REFERENCE TO THEIR 
PARENTS. 

§ 264. General Duties of Children to Parents 308 

§ 265. AVhether Child may be legally bound to support Parent; 

Statutes 369 



TABLE OF CONTENTS. XVll 

Page 

§ 266. Rights of Children in General 370 

§ 267. The Emancipation of a Child 371 

§ 267 a. How a Minor Child is emancipated; Parental Relinquish- 
ment of Right to Earnings 372 

§ 268. Effect of Minor Child's emancipation or Relinquishment . 375 

§ 269. Rights of Full-grown Children 376 

§ 270. Gifts, &c., and Transactions between Parent and Child . . 378 

§271. Same Subject; English Cases 380 

§272. Advancements and Distributive Shares; Expectancies of 

Heirs 381 

§ 273. Stepchildren ; Quasi Parental Relationship 38-5 

§ 274. Claims against the Parental Estate for Services rendered . . 385 
§ 275. Suits between Child and Parent 386 



CHAPTER VI. 

4 

ILLEGITIMATE CHILDREN. 

§276. Illegitimate Children; Their Peculiar Footing 388 

§277. Disability of Inheritance 389 

§278. Mother preferred to the Putative Father; Custody . . . .391 

§ 279. Maintenance of Illegitimate Children 394 

§280. Persons in Loco Parentis ; Distant Relatives, &c 396 

§ 281. Bequests to Illegitimate Children 396 

§ 282. Guardianship of an Illegitimate Child 399 



PART IV. 

GUARDIAN AND WARD. 
CHAPTER I. 

OF GUARDIANS IN GENERAL; THE SEVERAL KINDS. 



§ 283. Guardianship defined; Applied to Person and Estate . 

§ 284. Classification of Guardians in England ; Obsolete Species 

§ 285. English Doctrine; Guardianship by Nature and Nurture 

§286. English Doctrine; Guardianship in Socage .... 

§287. English Doctrine; Testamentary Guardianship . . . 

§288. English Doctrine; Chancery Guardianship .... 

§ 289. English Doctrine; Guardianship by Election of Infant 

§ 290. Classification of (xuardians of Minors in the United States; 

Nature and Nurture, Socage, and Testamentary .... 409 

§291. American Doctrine ; Chancery and Probate Guardianship . 411 



400 
401 
402 
403 
404 
406 
408 



XVUl TABLE OF CONTENTS. 

Page 

§ 292. Guardianship by the Civil Law 413 

§ 293. Guardians of Idiots, Lunatics, Spendthrifts, &c 414 

§294. Guardians of Married Women 415 

§295. Special Guardians; Miscellaneous Trusts 416 

§ 296. Guardian ad Litem and Next Friend 416 



CHAPTER IL 

APPOINTMENT OF GUARDIANS. 

§ 297. Appointment of Guardians over Infants in General . . . 417 

§ 298. Guardians under Authority of the Law 417 

§§ 299, 300. Testamentary Guardianship, how constituted . . 418, 419 
§301. Guardianship by Appointment of Infant; Right to nominate 421 
§ 302. Chancery and Probate Guardians are judicially appointed. . 422 

§303. The Same Subject; Jurisdiction; how obtained 422 

§§ 304, 305. Selection of Chancery or Probate Guardian . . 425, 427 
§ 306. Same Subject ; Appointment of Married Women ; of Non- 
Resident, &c 430 

§ 307. Method of appointing Guardian ; Procedure 431 

§ 308. Effect of Appointment; Conclusiveness of Decree, &c. . . . 433 
§ 309. Civil-Law Rule of appointing Guardians 435 

CHAPTER III. 

TERMINATION OF THE GUARDIAN'S AUTHORITY. 

§ 310. How the Guardian's Authority is terminated 435 

§311. Natural Limitation; Ward of Age, &c 435 

§ 312. Death of the Ward 437 

§ 313. Marriage of the Ward 437 

§ 314. Death of the Guardian 439 

§ 315. Resignation of the Guardian 439 

§§ 316, 317. Removal and Supersedure of the Guardian . . 442, 444 

§ 318. Marriage of Female Guardian 446 

§ 319. Other Cases where a New Guardian is appointed .... 447 

CHAPTER IV. 

NATURE OF THE GUARDIAN'S OFFICE. 

§ 320. Guardianship relates to Person and Estate 448 

§ 321. Whether a Guardian is a Trustee 450 

§ 322. Joint Guardians 452 

§ 323. Judicial Control of the Ward's Property 453 

§ 324. Guardianship and other Trusts blended 454 

§ 325. Administration durante Minore JEtate 456 



TABLE OP CONTENTS. XIX 

Page 
§ 326. Quasi Guardianship where no Regular Appointment . . . 456 

§ 327. Conflict of Laws as to Guardianship 457 

§ 328. Conflict as to Ward's Person 457 

§ 329. Conflict as to Ward's Property 458 

§ 330. Constitutional Questions relating to Guardianship .... 460 



CHAPTER V. 

RIGHTS AND DUTIES OF GUARDIANS CONCERNING THE WARD's 
PERSON. 

§ 331. Division of this Chapter 460 

§§ 332, 333. Guardian's Right of Custody 462, 464 

§ 334. Guardian's Right to change Ward's Domicile or Residence . 466 
§ 335. Right to Personal Services of Ward; to recover Damages; 

Other Rights 468 

§ 336. Guardian's Duties as to Ward's Person ; in General . . . 469 

§ 337. Liability for Support of Ward 469 

§ 338. Same Subject; Using Income or Capital, &c 472 

§ 339. Allowance to Parent for Ward's Support; Chancery Rules . 474 

§ 340. Secular and Religious Education of Ward by Guardian . . 476 



CHAPTER VI. 

RIGHTS AND DUTIES OF THE GUARDIAN AS TO THE WARD's ESTATE. 

§ 341. Li General; Leading Principles 477 

§ 342. Guardian's General Powers and Duties as to Ward's Estate . 477 

§ 343. Right to sue and arbitrate as to W^ard's Estate 478 

§ 344. AVhether Guardian can bind Ward's Estate by his Contracts 481 
§ 345. Title to Promissory Notes, &c. ; Promise not Collateral . . 482 

§ 346. Guardian's Employment of Agents 482 

§ 347. Changes in Character of Ward's Property; Sales, Exchanges, 

&c 483 

§§ 348, 849. Limit of Guardian's Responsibility in Management 485, 487 
§§ 350, 351. Management of Ward's Real Estate in Detail. . 488, 490 
§ 352. Management of the Ward's Personal Property in Detail . . 492 

§ 353. Investment of Ward's Funds 494 

§ 354. Same Subject; when Chargeable with Interest 497 

CHAPTER Vn. 

SALES OF THE WARD's REAL ESTATE. 

§ 355. In Sales of Ward's Personal Property a Liberal Rule ap- 
plies ' 499 



XX TABLE OF CONTENTS. 

Page 
§ 356. Otherwise as to Real Estate ; Whether Chancery cau sell In- 
fant's Lands 500 

§357. Same Subject; English Chanceiy Doctrine 501 

§ 358. Ci\al-Law Rule as to Sales of Ward's Lands 502 

§ 359. Sale of Ward's Lands under Legislative Authority common 

in the United States . 502 

§ 360. American Statutes on this Subject considered 503 

§361. Same Subject; Essentials of Purchaser's Title 505 

§362. American Statutes; Sales in Cases of Xon-Residents . . . 509 
§ 363. American Chancery Rules as to Sales of Infant's Land . . 510 
§ 361. Guardian's own Sale not binding ; Public Sale usually re- 
quired 



511 



CHAPTER VIIL 

THE guardian's BOND, INVENTORY, AND ACCOUNTS. 

§365. Guardian's Recognizance; Receiver, &c.; English Chancery 

Rule 512 

§366. American Rule; Bonds of Probate and other Guardians . . 513 
§§ 367, 368. The Same Subject; Liability of Guardian and Sure- 
ties 515, 518 

§ 369. The Same Subject; Special Bond in Sales of Real Estate . . 519 

§ 370. The Guardian's Inventory 520 

§371. The Guardian's Accounts; English Chancery Pi-actice . . . 521 
§§372,373. Guardian's Accounts; American Practice; Periodical 

and Final Accounts, &c 521, 525 

§ 374. The Same Subject; Items allowed the Guardian on Account 526 

§ 375. Compensation of Guardians 529 

§ 376. Suit on the Guardian's Bond for Default and Misconduct . 530 
§ 377. The Same Subject; Remedies against and on behalf of Sure- 
ties 532 

CHAPTER IX. 

RIGHTS AND LIABILITIES OF THE WARD. 

§ 378. General Rights of the ^Yard 534 

§ 379. Doctrine of Election as to Wards, Insane or Infant .... 534 

§ 380. Same Subject; Insane Persons and Infants Contrasted . . 535 

§ 381. Responsibility of Guardian to Ward as Wrong-doer, &c. . . 535 

§382. Wai'd's Action or Bill for Account; Limitations, &c. . . . 536 

§ 383. Ward's Right to recover Embezzled Property, &c 538 

§ 384. Fraudulent Transactions set aside on W'ard's Behalf . . . 538 

§ 385. Ward's General Right to repudiate Guardian's Transactions; 

His Right of Election 540 



TABLE OF CONTENTS. XXI 

Page 
§ 386. Same Subject; Resulting Trusts; Guardian's Misuse of Funds; 

Purchase of AVard's Propertj', &c 542 

§387. Transactions between Guardian and Ward; Undue Influence 544 
§ 388. Same Subject; Situation of Parties at Final Settlement of 

Accounts . . 545 

§ 389. Transactions after Guardianship is ended 549 

§ 390. Marriage of AVard against Consent of Chancery or Guardian 551 



PART V. 

INFANCY. 



CHAPTER I. 

THE GENERAL DISABILITIES OF INFANTS. 

§ 391. Age of Majority 553 

§ 392. Growing Capacity during Non-age ; Legislative Relief from 

Non-age 554 

§ 393. Conflict of Laws as to True Date of J\Iajority 555 

§ 394. Infant's Right of holding Oflice and performing Official Func- 
tions . 556 

§ 395. Infant's Responsibility for Crime 558 

§ 396. Infant's Criminal Complaint; Infant as Prosecutor .... 560 

§ 397. AVhether Infant may make a AVill 560 

§ 398. Testimony of Infants 562 

§ 399. Marriage Settlements of Infants 564 



CHAPTER IL 

ACTS VOID AND VOIDABLE. 

§ 400. General Principle of Binding Acts and Contracts, as to In- 
fants 566 

§401. The Test as to A'^oid and Voidable ; Infant's Transactions . 567 
§ 402. Privilege of avoiding is Personal to Infant; Rule as to Third 

Persons, &c 569 

§ 403. Modern Tendency regards Infant's Acts and Contracts as 

Voidable rather than Void ; Instances discussed .... 571 

§404. Same Subject; Bonds, Notes, &c 572 

§405. Same Subject; Deeds, &c. Rule of Zouch v. Parsons . . . 573 
§ 406. Same Subject; Letters of Attorney; Cognovits, &c. . . . 575 
§ 407. Same Subject; Miscellaneous Acts and Contracts Voidable 

and not Void 577 



XXH TABLE OF CONTENTS. 



§ 408. Infant's Trading and Partnership Contracts 579 

§ 409. Void and Voidable Acts contrasted; When may Voidable 

Acts be affirmed or disaffirmed 581 



CHAPTER III. 

ACTS BINDING UPON THE INFANT. 

§ 410. General Principle of Binding Acts and Contracts .... 583 
§411. Contracts for Necessaries ; What are such for Infants . . . 583 
§§ 412, 413. Contracts for Necessaries; Subject continued . . 586, 589 
§414. Contracts for Necessaries; Money advanced; Infant's Deed, 

Note, &c. ; Equity Ptules 502 

§ 415. Binding Contract as to Marriage Relation; Promise to marry 

not binding 595 

§ 416. Acts which do not touch Infant's Interest ; Where Trustee, 

Officer, &c 596 

§ 417. Infant Members of Corporations 596 

§ 418. Acts which the Law would have compelled 596 

§ 419. Contracts binding because of Statute; Enlistment; Indenture 597 
§ 420. Infant's Recognizance for Appearance on Criminal Charge . 598 
§ 421. Whether Infant's Contract for Service binds him .... 598 

CHAPTER IV. 

THE INJURIES AND FRAUDS OF INFANTS. 

§ 422. Division of this Chapter 599 

§ 423. Injuries committed by Infant; Infant civilly Responsible . . 599 

§ 424. Immunity for Violation of Contract distinguished .... 601 
§§425,426. Same Subject; Infant's Fraudulent Representations as 

to Age, &c 604, 606 

§427. Injuries, &c., suffered by Infants 607 

§428. Same Subject; Child's Contributory Negligence 607 

§ 429. Same Subject; Contributory Negligence of Parent, Protector, 

&c 608 

§ 430. Suits of Parent and Child for Injmy; Loss of Services reck- 
oned 611 

§ 431. Arbitration, Compromise, and Settlement of Injuries com- 
mitted or suffered by Infants 611 

CHAPTER V. 

RATIFICATION AND AVOIDANCE OF INFANT'S ACTS AND CONTRACTS. 

§ 432. Infants may ratify or disaffirm Voidable Acts and Contracts 612 
§ 433. Rule affected by Statute ; Lord Tenterden's Act; Other Statutes 612 



TABLE OF CONTENTS. XXIU 

Page 
§434. Rule Independent of Statute; American Doctrine .... (514 

§ 435. The Same Subject; Instances 016 

§ 436. The Same Subject; Conflicting Dicta 619 

§ 437. The Same Subject ; Summary of Doctrine 620 

§ 438. Rule as to Conveyance of Infant's Lands, Lease, Mortgage, &c. 622 
§ 439. Same Subject; Infant's Conveyance, Lapse of Time, &c. . . 623 

§440. The Same Subject; Entry, &c 625 

§ 441. Ratification, &c., as to an Infant's Purchase 627 

§ 442. Executory Contracts, &c., Voidable during Infancy; how af- 
firmed or disaffirmed . 628 

§ 443. Rule applied to Infant's Contract of Service 629 

§444. Parents, Guardians, &c., cannot render Contract Obligatory 

upon the Infant, &c 631 

§445. Miscellaneous Points; As to New Promise ; Whether Infant 

affirming must know his Legal Rights 632 

§ 446. Whether Infant who disaffirms must restore Consideration . 632 

§ 447. Ratification, &c., as to Infant Married Woman 634 

§ 448. Rules ; How far Chancery may elect for the Infant .... 635 



CHAPTER VI. 

ACTIONS BY AND AGAINST INFANTS. 

§ 449. Actions at Law by Infants: Suit or Defence by Next Friend 

or Guardian • 636 

§ 450. Action at Law by Infants ; The Next Friend 638 

§ 451. Action at Law against Infant; the Guardian ad Litem . . 640 
§452. Chancery Proceedings by or against Infants; Corresponding 

Rule 643 

§ 453. Binding Effect of Decree or Judgment upon the Infant . . 644 



PART yi. 

MASTER AND SERVANT. 
CHAPTER I. 

NATURE OF THE RELATION; HOW CREATED AND HOW TERMINATED. 

§ 454. Definition ; this not strictly a Domestic Relation .... 646 

§ 455. Rule of Classification as to Master and Servant 648 

§456. Relation of Master and Workman; Courts of Conciliation; 

Trade Unions, &c 649 

§ 457. Relation of Master and Apprentice 651 



XXIV TABLE OF CONTENTS. 

Page 
§ 458. Strict Relation of Master and Servant ; Contract of Hiring . 654 
§ 459. Contract of Hiring affected by Statute of Frauds .... 657 
§ 460. Contract of Hiring; wlieu in Restraint of Trade or Oppressive 

as to Length of Term 657 

§461. Creating the Relation of Service; Quasi Servants . . . . 659 
§§ 462, 463. How Contract for Service is terminated; Causes of Dis- 
charge, &c 660, 663 

§ 464. Termination of Service by Mutual Consent, &c ; Special 

Terms 663 

§ 465. Servant's Occupation of Master's Premises; No Tenancy Pre- 
sumed 664 

CHAPTER 11. 

MUTUAL OBLIGATIONS OF MASTER AND SERVANT. 

§466. Obligations to be considered; as to Master; as to Servant . 664 
§ 467^ JMaster's Obligation as to Education, Discipline, &c. . . . 664 

§ 468. INIaster's Obligation as to furnishing Necessaries 665 

§ 469. Master's Obligation as to finding Work 666 

§ 470. Master's Obligation to indemnify Servant 666 

§ 471. Master's Obligp.tion to receive into Service the Person en- 
gaged; Remedies for Breach 667 

§472. Obligation to pay Wages ; Servant's Right to recover . . . 667 
§473. The Same Subject; Rules for Payment of Wages; Offsets; 

Preference; Apportionment, &c 669 

§ 474. The Same Subject; Change of Contract; Excuse by Act of 

God; Justifiable Termination, &c 672 

§ 475. The Same Subject; Termination by Mutual Consent; Special 

Conditions, &c 674 

§ 476. Master's Representations as to Servant's Character; Guaranty 

as to Character, &c 675 

§477. Obligations resting specially upon the Servant; Performance 

of his Engagement 676 

§ 478. Servant's Accountability to his Master; Negligence, Unskil- 

fulness, &c 677 

§ 479. ^Master and Servant may defend one another 677 

§ 480. Servant a Competent Witness for his Master 677 

CHAPTER III. 

RIGHTS AND LIABILITIES OF THE SERVANT AS TO THIRD PERSONS. 

§481. Servant not personally liable on Contracts ; Exceptions . . 678 

§ 482. Rule of Servant's Liability for his Torts and Frauds . . . 679 

§4S^,. Torts and Frauds of Public Officers 680 

§ 484. Criminal Accountability of Servant 681 



TABLE OF CONTENTS. XXV 

CHAPTER IV. 

GENERAL RIGHTS AND LIABILITIKS OE THE MASTER. 

Pago 

§ 485. Leading Division of this Chapter 681 

§ 486. Master's Right of Action for Injuries to Servant .... 681 

§ 487. Right of Action for Seduction, Enticement, &c., of Servant . 682 

§ 488. Wlaether Servant's Outside Acquisitions belong to Master, &c. 684 
§489. Liability of Master upon Servant's Contracts; Servant's 

Agency 684 

§ 490. Master's Civil Liability to Others for Servant's Torts . . . 687 

§ 491. The Same Subject; Limitations of Rule 690 

§ 492. Master's Responsibility for Tort to his own Servants; Excep- 
tion as to Fellow-Servants, &c 691 

§ 493. Master not Criminally Responsible for Servant, but only for 

himself 694 

§ 494. Final Observations on Law of Domestic Servants .... 695 



Preface to the Third Edition iii 

Preface to First Edition v 

Table of Contents vii 

Table of Cases xxvii 

Index 697 



TABLE OF CASES. 



A. 



Section 



V. Lyne 






305 


Aaron v. Harley 






411 


Abbey v. Deyo 






168 


Abbott V. Abbott 


52 


221 


275 


V. Bayley 






219 


V. Converse 


267, 267 a 


Abdil V. Abdil 






451 


Abington v. North Bridgewater 


2.30 


Abraham v. Reynolds 






492 


Abrahams v. Kidney 






261 


Abshire v. State 






193 


Ackerman v. Bunyon 






437 


Ackert v. Pults 






94 


Ackley v. Dygert 






361 


Acosta V. Kobin 






278 


Acton V. Pierce 






176 


Adams v. Adams 44, 


48, 226, 269 


278 


V. Cutright 






30 


V. Palmer 






13 


V. Riviere 






382 


V. Ross 






404 


Adams's Appeal 




301 


.307 


Adams Express Co. v. 


Trego 


462 


477 


Adamson v. Armitage 




105 


106 


Addison v. Bowie 






238 


Adlard v Adlard 






190 


Agar-Ellis, In re 






840 


V. Lascelles 






235 


Ahern v. Easterby 






67 


Ahrenfeldt v. Ahrenfeldt 




249 


Airhart v. Murphy 






86 


Alabama, &c. Ins. Co. 


V. Boykin 


94 


Albany Fire Ins. Co. v 


• Bay 


94 


1.33 


Albert v. Perry 






305 


I'. Winn 






173 


Albin V. Lord 




150 


155 


Albro V. Jaquith 






482 


Alcock V. Alcock 






53 


Alderman v. Tirrell 






451 



Aldrich v. Grimes 


S« 


ction 
437 


Aldridge v. Muirhead 


153 


,155 


Alexander, Re 




186 


V. Alexander 


821 


,374 


V. Americus 




475 


V. Frary 




451 


V. Gibson 




489 


V. Hard 




89 


V. Heriot 




435 


Alfred v. McKay 




278 


Allen V. Allen 


225 


405 


V. Coster 


238 


239 


V. Crosland 




367 


V. Fuller 




148 


V. Gaillard 




353 


V. Higlitower 




154 


V. Hoppin 




343 


V. Jackson 




32 


V. London, &c. R. R. Co. 




490 


V. McCuUough 




86 


V. Minor 




404 


V. Peete 




305 


V. Poole 405, 435, 


438, 


439 


V. Scurry 




89 


V. State 




367 


V. Tiffany 




376 


V. Walt 




188 


Allorton Packing Co. v. Egan 




492 


AUfrey v. AUfrey 




389 


Allison V. Norwood 




457 


AUman v. Owen 




372 


Allsop V. Allsop 




77 


Almond v. Bonnell 




114 


Almy V. Wilcox 




66 


Alna V. Plummer 




67 


Alston V. Alston 


326 


366 


V. Munford 


3-22' 


323 


Alsworth V. Cordtz 


402, 


439 


Altemus's Case 




221 


Althorf V. Wolfe 




492 



XXVlll 



TABLE OF CASES. 



Section 

Alton V. Mullcdy 4(J1 

Alverson v. Jones ll!0 

Ambrose v. Kenison 199 

American, &c. Ins. Co. v, Owen \)i 

Ames V. Chew 222 

V. Foster 148, 170 

V. Union R. 457, 486 

Ammons v. People 307, 37G 

Amor V. Fearon 4(J2 

Anderson v. Anderson 77, 83, 107 

V. Armstead 151 

V. Brooks 121 

V. Darby 350 

V. Layton 361, 385 

V. Mather 363, 447 

V. Roberts 187 

V. Smith 50 

V. Warde 451 

V. Watson 343 

Anderton v. Yates 333 

Andover v. Merrimack County 269 

Andrews, /?) re 299, 333 

V. Andrews 188, 390 

V. Askey 262 

V. Garrett 241 

17. Monilaws 158 

V. Salt 340 

Andrews's Heirs, Case of 329, 369 

Angel V. Felton 56, 57, 75 

V. McLellan 241, 413 

Angell V. Probate Court 293, 307 

Angle w. Ilanna 477 

Ankeny v. Blackiston 343 

Annin v. Annin 187, 188 

Anonymous 18, 232, 238, 240, 250, 306, 

313, 320, 340 

Ansley y. Jordan 

Appleton V. Rowley 

Apthorp V. Backus 

Archer i\ Frowde 

V. Hudson 

V. Rorke 

Archley v. Sprigg 

Ardis !•. Printup 

Armfield v. Armfield 

V. Tate 
Armitage v. Snowden 

r. Widoe 
Armstrong v. Armstrong 



472, 473 

107 

449 

450 

271 

lOlS 

225 

174 

173, 174 

441 

386 

406, 407, 444 

80 

McDonald 252 a 

V. Ross 133, 1.34, 136, 143, 147, 158 

V. Stone 248 

V. Walkup 313, 326, 372, 374, 375 

Arnold v. Bidwood 87 

V. Earle 397 

V. Norton 259, 267 a 

Arrington v. Dortch 206 

Artlmr v. Arthur 105, 141 

Arthur's Appeal 291, 301 

Arundell v. Piiipps 188 

Ashby V. Johnston 307 



Section 

Ashcraft v. Little 124 

Aslifiold r. Ashfield 438 

Ashley v. Harrison 487 

V. Martin 354, 372 

Ashlin V. Langton 406 

Ashtou V. Ashton 453 

V. Aylett 134 

Ashworth v. Outram 163, 166 

V. Stanwix 492 

Askew V. Dupree 26, 29, 30 

Aspdin V. Austin 469 

Atcherley v. Vernon 105 

Atcheson v. Everitt 493 

Atchison v. Bruff 413 

Atkin V. Acton 462 

Atkins V. Curwood 64 

Atkinson, Ex par-te 330 

V. Atkinson 854 

V. Medford 18 

V. Phillips 187 

V. Whitehead 348, 352 

Atkyns v. Pearce 66 

Attebury v. Attebury 162 

Attorney-General v. Siddon 493 

Attridge v. Billings 61 

Atwood V. Holcomb 252 a, 267 a 

V. Meredith 169 

Aucker v. Levy 176 

Auster v. Powell 272 

Austin V. Wilson 75 

Averson v. Lord Kinnaird 53 

Avery v. Grifliins 58 

V. Vansickle 143 

Ayer v. Warren 58, 219 

Ayers v. Jenkins 174 

Ayliff y. Archdale 414 

Ayliffe v. Tracy 178 

Ayling ?'. Whicher 77 

Aylward v. Kearney 388 

Aymar v. Roff 20 



B. 



B. V. B. 19 

Baason i\ Baehr 475 

Babb V. Perley 89 

Babbitt v. Babbitt 38 

Babcock i'. Doe 403 

V. Smith 175 
Bacon v. Taylor 343, 350 

Baddeley v. Baddcley 190 

Badenhoof v. Johnson 305 
Badger v. Phinney 424, 446 

Badgley v. Decker 261 

Baggett V. Meux 110 

Bagley v. Mollard 281 

Bailey, Ex parte 245 

V. Bailey 45 

V. Bamberger 446 



TABLE OP CASES. 



XXIX 



Section 

Bailey ?'. Calcott 66 

V. Duncan 89 

V. riske 17 

V. King 241 

V. Pearson 145 

V. Ilosers 376 

Baillie o. Kell 463 

Bain v. Doran 197 

V. Lescher 105 

Bainbridge v. Brown 271 

V. Pickering 4lo 

Baines v. Barnes 238 

Baker r. Baker 23, 252 a 

V. Barney 68 

V. Bolton 78 

V. Bradley 271 

V. riournoy 89 

V. Gregory 155 

V. llaldeman 203 

V. Hall 84 

V. Hathaway 150 

V. Jordan 181 

V. Kennett 437 

V. Lovett 407, 431 

V. Ormsby 348 

V. Richards 353 

V. Wood 367 

V. Young 75 

Baker's Trusts, Fn re 109 

Bakers v. Winfrey 457 

Balch V. Smith 299 

Baldwin v. Carter 176, 198 

V. Casella 490 

Ball V. Ball 246, 304 

V. Bennett 75 

V. Bruce 261 

Ballantine v. White 53 

Ballard v. Bruramitt 367 

V. Russell 77 

V. Ward 232 

Ballenger v. McLain 457 

Ballin v. Dillaye 136 

Ballou I'. Farnum 461 

Baltimore, &c. 11. R. Co. v. State 429 

Bamford v. Shuttlewortli 481 

Banbury Peerage Case 225 

Bangor v. Readfield 267 a 

Bank of Virginia v. Craig 381 

Banker v. Banker 18 

Banks i'. Conant 252 a 

Bannister v. Bannister 335 

Banton v. Campbell 193 

Barbat v. Allen 53 

Barbee v. Armstead 41 

Barber v. Harris 91 

V. State 279 

Barclay v. Waring 180, 221 

Bard r. Wood 372 

Bardwell v. Purrington 457 

Barela v. Roberts 278 

Barham v. Earl of Clarendon 174 



Section 

Barker v. Circle 150 

c. Dayton 06 

V. Dixie 53 

V. Hibbard 412 

V. Morrill IBS 

V. Wilson 405 

Barksliire v. State 17 

Barlow v. Bishop 163 

V. Grant 240 

Barnaby v. Barnaby 385, 407, 435 

Barnard v. Ford 85 

V. Heydrick 451 

Barnes v. Allen 41 

V. Barnes 249 

V. Camack 53 

V. Couipton 388 

V. Ehrman 94 

V. Harris 75 

V. Hazleton 272 

V. Powers 816 

V. Wyethe 24 

Barnet ;;. Commonwealth 313 

Barnhizel i\ Ferrell 232 

Barney ?'. Saunders 354 

V. Seeley 351 

Barns v. Branch 319 

Barnum v. Barnum 26, 225 

V. Frost 337 

Barr v. Armstrong 63 

V. Van Duyn 472 

Barrack i-. M'Culloch 106, 198 

Barrere v. Barrere 248 

Barrett v. Churchill 361 

V. Cocke 351 

V. Seward 394 

Barron v. Barron 162, 191 

Barrow v. Barrow 174 

Barry v. Barry 304 

Bartholemew r. Finnemore 446 

Bartlett, Ex parte 334 

V. Bartlelt 137 

V. Cowles 313 

Bartley v. Richtmeyer 261 

Barton v. Beer 168 

V. Morris 23 

Bartonshill Coal Co. v. Reid 492 

Barwick v. Rackley 449, 450 

Basford v. Peirson 150 

Bass V. Cook 335 

Basse v. Allen 464 

Bassett r. Bassett 23, 24, 191 

Bast V. Byrne 463, 464, 472 

Batchelder r. Sargent 148 

Bates V. Dandy 88 

r. Enright 67 

Battell V. Torrey 361 

Battle r. Vick 304 

Bauer v. Bauer 145 

Baugh r. Boles 377 

Bavington v. Clarke 418 

Baxter v. Bush 424, 441 



XXX 



TABLE OF CASES. 





Section 




Section 


Baxter v. Nurse 




458 


Bellinger v. Shafer 


351 


V. Prickett 




162 


Bellows V. Rosenthal 


165 


Bay V. Gunn 




435 


Bellune v. Wallace 


367 


Bayard r. Hoffman 




186 


Belton V. Briggs 


435, 439 


Bayler v. Commonwealth 




95 


V. Hodges 


408 


Baylis v. Dineley 




404 


Benadum v. Pratt 


219 


Bayspoole v. Collins 




188 


Benham ;;. Bishop 


435 


Bazeley v. Forder 


66, 


237 


Benison v. Worsley 


307 


Beach v. Mullin 458, 


462, 


473 


Benjamin v. Bartlett 


75 


V. Ranney 




77 


V. Benjamin 


58 


V. White 




187 


Bennet v. Bennet 248, 249, 256, 272 


Beachcroft v. Beachcroft 




281 


Bennett v. Allcott 


261 


Beal V. liarnion 




348 


V. Byrne 


305, 366 


I'. Warren 


150 


187 


V. Davis 


104, 406 


Beall V. Beall 




229 


V. Gillett 


260 


V. Smith 




453 


V. Hanifin 


372 


Beam v. Froneberger 




385 


V. Ives 


482 


Beamisli i'. Beamish 




29 


V. Smith 


20,41 


Bean v. Smith 




187 


V. Stacy 


473 


Bear ).'. Hays 




162 


V. Welder 


398 


Bear's Administrator v. Bear 




120 


Benson v. Benson 


107, 108 


Beard v. Dean 


301 


306 


V. Remington 


252 


• V. Webb 




103 


Bent V. Manning 


411, 413 


Beasley v. Magrath 




239 


Bcntley v. Shreve 


354 


V. Watson 


339 


352 


V. Simmons 


120 


Beattie r. Jolmston 




329 


Bently v. Terry 


251 


Beau V. Kiah 




162 


Benton v. Benton 


23 


Beaudry v. Felch 




155 


Benwell v. Inns 


460 


Beaufort v. Collier 




124 


Benziger v. Miller 


2-52 a, 268 


Beaver v. Lane 




89 


Bercy v. Lavretta 


127 


Beavers v. Brewster 


312 


343 


Berea Stone Co. v. Kraft 


492 


Beazley v. Harris 


313 


384 


Bergen v. Udall 


271 


Beclier, Ex parte 




320 


Berkmeyer r. Kellerman 


389 


Becker v. Gibson 




265 


Berry v. Jolmson 


306 


Beckham v. Drake 




472 


V. Owens 


277 


Bedell v. Bedell 


248 


249 


I'. Teel 


162 


V. Constable 286 


299 


320 


Bertrand v. Elder 


188 


V. Lewis 




451 


Besant, Re 


218, 235 


Bedell's Appeal 




188 


V. Wood 


218 


Bedford v. M'Kowl 




262 


Besse v. Pellochoux 


222 


Bedinger v. Wharton 




446 


Besson r. Eveland 


155 


Beebe v. Estabrook 




272 


Best V. Best 


23 


Beech v. Keep 




189 


V. Givens 


435 


Beecher v. Crouse 




343 


Bethlem v. Roxbury 


278 


Beedle v. State 




388 


Bethune v. Green 


349 


Beeler v. Bullett 




402 


Betton's Trust Estates, In 


re 88 


V. Dunn 




338 


Betts V. Betts 


154 


V. Young 404 


411 


413 


V. Carroll 


446 


Beeston v. Collyer 




462 


V. De Vitre 


490 


Belford v. Crane 




187 


Beverson's Estate 


26, 27 


Bell, Ex parte 




290 


Bevier v. Galloway 


66 


V. Drummond 




473 


Bevis V. Hefiin 


349, 385, 386 


V. Hallenback 




270 


Bibb V. McKinley 


326 


V. Herrington 




457 


Bickel V. Erskine 


407, 453 


V. Jasper 




367 


Bicknell v. Bicknell 


444, 451 


V. Morrison 




436 


Bigelow V. Grannis 


445 


Bellairs v. Bellairs 




32 


V. Kinney 


438 


Bellefontaine, &c. R. R. Co. v 


Snj 


'. 


Bill V. Curoton 


187, 189 


der 




429 


Binion r. Miller 


389 


Beller ?•. Jones 




251 


Binnin<iton v. Wallis 


279 


V. Marcliant 




408 


Birchall, In re 


448 



TABLE OF CASES. 



XXXI 



Bird V. Brown 

V. Yegg 

V. Pegrum 

V. Randall 
Birtwhlstlo v. Vanlill 
Biscoe V. Kennedy 
Bishop, /n re 

V. Bisliop 

V. Blair 

V. Sheperd 

V. Wall 
Bissell V. Bissell 
Bitter v. IJathman 
Bixby V. Dunlap 
Black V. Bryan 

V. Galway 

V. Hills 

V. Walton 

V. Whitall 
Blackborne v. Haigh 
Blackburn v. Crawfords 

V. Mackey 
Blacklow r. Laws 
Blackman i\ Baumann 

V. Davis 
Blackmore v. Brider 

V. Shelby 
Blackwell v. State 
Blades v. Free 
Blagge ('. Ilsley 
Blake v. Blake 

V. Douglass 

V. Hall 

V. Lanyon 

V. Leigh 

V. Pegram 322, 343, 372, 
Blanchard v. Ilsley 
Blandford v. Marlborough 
Blaiikenship v. Stout 
Blauser 17. Dield 
Blaymire v. Haley 
Bledsoe v. Britt 
Blevins v. Buck 
Blodget r. Brinsmaid 
Blodgett V. Berlin Mills 
Blodwell V. Edwards 
Blogg V. Kent 
Blonifield r. Eyre 
Blood V. Harrington 
Blount I'. Bestland 
Bloxam v. Elsee 
Blue V. Marshall 
Blumenthal v. Tannenholz 
Blunt V. Melcher 
Boast V. Firth 
Bobb V. Barnura 
Bobo r. Bryson 

V. Hansen 
Bodine v. Killeen 
Boggs V. Adger 
Bohn V. Headley 



Section 




Section 


489 


Boland v. Klink 


148 


449 


Bold V. Hutchinson 


180, 182 


107 


Bolingbroke v. Kerr 


86 


477, 487 


Bollin V. Shiner 


30 


227, 231 


Bolton !\ Miller 


267 a, 457 


134 


Bond, Ex parte 


238, 304, 307 


235 


Bond V. Dillard 


295 


38 


V. Lockwood 237, 


350, 367, 375, 


98 




388 


252 a 


Bones's Appeal 


382 


183 


Bongard v. Cove 


155 


26,27 


Bonham v. Badgley 


16 


169 


Bonnell v. Berryhill 


332 


487 


V. Holt 


448 


66 


Bonney i'. Reardin 


56, 415 


94 


Bonsall's Case 


347 


439 


Bonslaugh v. Bonslaugh 


89 


360 


Boobier v. Boobier 


267 « 


272 


Boody V. McKenney 


435, 439, 441 


77 


Booker v. Worrill 


188 


29, 22.5 


Bookter, Succession of. 


317 


241 


Bool I'. Mix 


405, 409, 440 


105 


Boon V. Bowers 


330 


361 


Booth V. Dean 


473 


449 


Borst V. Spelman 


189 


16 


Bort, In re 


249 


348 


Borton v. Borton 


399 


398 


Boss V. Gomber 


154 


212 


Boston Bank v. Chamberlain 438 


261 


Boston Glass Manufactory v. Bin- 


94, 323 


ney 


487 


453 


Best wick. In re 


338 


148 


Matter of 


240 


487 


V. Atkins 


489 


235, 246 


Botham v. M'Intier 


347 


374, 376 


Botsford V. Wilson 


58, 95, 150 


261 


Boukniglit v. Epting 


114 


182 


Bourne v. Maybin 311, 


313, 348, 372 


439 


Bowden v. Gray 


81 


361,369 


Bowe V. Bowe 


275 


261 


Bowen v. Sebree 


124, 192 


316 


Bowers v. Bowers 


14,16 


114 


V. State 


261 


16 


V. Van Winkle 


152 


473 


Bowles V. Dixon 


304 


281 


Bowman's Appeal 


350 


471 


Bowser v. Bowser 


188 


381 


Bowyer's Appeal 


89 


449 


Boyce v. Boyce 


38,42 


84 


V. People 


261 


488 


Boyd V. Blaisdell 


260 


843 


V. Boyd 


272, 368 


230 


V. Gault 


367 


419 


V. Glass 


328 


457 


V. Sappington 


241 


361 


Boyden v. Boyden 


435, 441 


268 


Boyers v. Newbanks 


350 


437 


Boyes v. Bedale 


231 


168 


Boyett V. Hurst 


3.53 


353 


Boykin v. Ciples 


112, 123 


270 


Boyle V. Brandon 


261 



XXXll 



TABLE OF CASES. 



Section 



Boyle V. Parker 

Eoynton v. Clay 

V. Dj-er 

V. Hubbard 
Bozenian v. Browning 
Bracegirdle v. Heald 
Brackett t;.'Wait 
Bradbury i'. Helms 
Bradford v. Bodfish 

V. Green way 

V. Johnson 
Bradley v. Hughes 

V. Pratt 

V. Saddler 

17 State 
Bradshaw ;;. Beard 

V, Bradshaw 
Bradstreet v. Baer 
Braly v. Reese 
Brame v. McGee 
Branch v. I)e Bose 
Brand v. Abbott 
Bratney v. Curry 
Bray v. Wheeler 
Bra^'shaw v. Eaton 
Brazier v. Clark 
Breadalbane v. Chandos 
Breadalbane's Case 
Bredin v. Dwen 
Breed v. Judd 

V. Pratt 
Breed's Will 
Breman v. Paascli 
Brenham v. Davidson 
Brent r. Grace 
Bressler '■. Kent 
Brevard v. Jones 
Brewer v. Harris 
Bridge v. Bridge 

V. Brown 
Briers v. Hackney 
Briggs V. Briggs 

V. McCabe 

V. Morgan 

V. Titus 
Brigham r. Boston, &c. " 

V. Fawcett 

V. Wheeler 
Brink v. Fay 
Brisbane v. Bank 
Briscoe v. Johnson 
Bristow r. Eastman 
Britton v. Williams 
Broadus v. Rosson 
Brock V. Parker 
Brockbank v. Whitehavi 

R. R. Co. 
Bronson v. Southbury 
Brookbank v. Kennard 
Brooke i'. Brooke 
Brooker v. Scott 



Section 



472, 475 


Brookfield v. Allen 


67 


450 


V. Warren 


237 


372, 388 


Brooks V. Brooks 


369, 381 


272 


V. Dent 


175 


402 


V. Rayner 


367 


459, 471 


V. Shelton 


155 


94 


Brown v. Ackroyd 


61 


473 


V Belmarde 


226 


339 


V. Black 


407 


13G 


V. Bokee 


83 


169 


V. Bonner 


183 


108 


V. Brown 183, 189, 


198, 343, 


404, 412, 414 




399 


175 


V. Burk 


272 


48 


V. Caldwell 


402, 432 


199 


V. Carter 


188 


239, 322 


V. Chase 


313 


169 


V. Christie 


361 


303 


V. Clark 


105 


174 


V. Croft 


462 


386 


V. Deloach 


241 


353, 354 


V. Dunham 


352 


207 


V. Fifield 


77 


268 


V. Gale 


89 


413 


V. Hartford Ins. Co. 


402 


368 


V. Hull 


450 


182 


V. Johnson 


124 


26, 27 


.1'. Jones 


175 


337 


V Knapp 


269, 272 


411, 443 


V. Lasselle 


57 


308, 380 


V. Lent 


482 


339 


V. Lynch 


230, 303 


41 


V. McCune 


425 


330, 361 


V. JNI'Donald 


270 


372 


V. Midgett 


66 


94 


V. Mullins 


338 


116, 203 


V. Orr 


58 


457 


V. Pat ton 


66 


189 


V. Peck 


218 


240 


V. Probate Judge 


366 


388 


V. Purviance 


491 


48, 274 


V. Ramsay 


262 


409 


V. Scott 


270 


19 


V. Smith 


238 


151 


V. Snell 


295 


R. R. Co. 308 


V. Welsh 


273 


188 


V. Westbrook 


18 


290, 299 


V. Wood 


53 


462 


Browning v. Reane 


18 


352 


Bruce v. Burke 


21 


372 


V. Doolittle 


388 


424 


V. Griscom 


272 


407 


V. Wood 


90 


337 


Bruin v. Knott 


238, 239 


457 


Bruner v. Wheaton 


148 


en Junction 


Brunnel v. Witherow 


174 


77 


Brunswick v. Litchfield 


• 31 


429 


Brush V. Blanchard 


273 


188 


Br3-an v. Duncan 


124 


106 


?'. Jackson 


241 


411 


V. INIanning 


361 



TABLE OF CASES. 



XXXlll 



Section 

Bryan v. T^ooks 200 

V. State 487 

Bryant v. Hryant 155 

V. Craig 353 

V. Flight 473 

V Livermore 453 

V. Merrill 114 

V. Richardson 411 

Bryce v. Wynn 311 

Brydon v. Stewart 492 

Bubbers v. Hardy 8(5 

Buchanan v. Grimes 372 

V. Lee 114 

Bucher v. Ream 81 

Buck V. Ashbrook 12G 

V. Buck 237 

V. Fischer 86 

V. Gilson 155 

V. Goodrich 89 

V. Wroten , 124 

Buckinghamshire (Earl of) v. Drury 

205 

238 

153, 154, 168 



Buckley v. Howard 
V. Wells 



Buckner v. Davis 136 

Bucksport V. Rockland 267 a 

Buckwortli 0. Buckworth 238 

Buell V. Shuman 95 

Buford V. Speed 72 

Bugbee v. Blood 64 

Bulklev V. Noble 272 

BuUard v. Briggs 188 

Buller V. Harrison 482 

Bullock V. Babcock 423 

V. Knight 87 

Bullpin V. Clarke 134 

Bumpus V. Dotson 366 

Bunn V. Winthrop 281 

Burcher v. Ream 154 

Burdett i'. Cain 343 

Burdick r. Babcock 235 

Burge V. Barge 183 

Burger v. Belsley 77 

Burgess v. Burgess 16 

V. Carpenter 487 

Burghart v. Anger&tein 413 

V. Hall 413 

Burk V. Serrill 94 

Burke v. Louisville R. 254 

Matter of 238 

Burkett v. Trowbridge 71 
Burleigh v. Coffin 83, 203 

Burley v. Russell 425 

Burlingame v. Burlingame 267 

Burnaby v. Griffin 133 

Burnard v. Haggis 424 

Burnet v. Burnet 328 

Burnett v. Hawpe 129 
Burnham v. Bailing 372, 388 

V. Holt 253 

V. Seaverns 423 



Burns v. Hill 




424 


Burr V. Wilson 


267 a 


399 


Burritt v. Burritt 




237 


Burrow v. Gilbert 




388 


Burrows v. Bailey 




308 


Burrus v. Burrus 




448 


Bursen v. Goodspeed 




451 


Burson's Appeal 




114 


Burton i-. Pierpont 




208 


V. Sturgeon 




221 


V. Tuniiell 




324 


Burwell v. Corbin 




450 


Bush V. Bush 




249 


V. Lindse^' 




71 


Bushnell r. Bishop Hill Colo 


ny 


241 


Bussom V. Forsyth 


225 


227 


Butler u. Breck 


56 


410 


V. Buckingham 




94 


V. Butler 


181 


238 


V. Freeman 


246 


288 


V. Gastrin 




16 


V. Slam 




273 


V. Tucker 




475 


Butterfield v. Ashley 




260 


V. Beall 




90 


V. Forrester 




491 


V. Heath 


175 


188 


V. Sta'Uon 




188 


Buzzell V. Laconia, &c. Co. 




492 


Bybee v. Tharp 


338 


388 


Byerlee v. Mendel 




473 


Byers v. Des Moines 




450 


V. Thompson 




270 


Byrd v. Turpin 




360 


Byrne v. New York Central R. 


428 


V. Van Hoesen 


290, 


311 



c. 



Caballero, Succession of 231 

Cadwell v. Siierman 252 a 

Caffee v. Kelly 82 

Caffey v. McMicliael 389 

Caffrey v. Darby 352 

Cahill V. Patterson 252 a 

Calame v. Calame 221 

Caldwell v. Drake 57 

Calhoun v. Calhoun 374 

Calkins v. Long 68 

Call V. Perkins^ 119 

V. Ruffin 377 

Callo I'. Brouncker 462 

Calmady ;;. Calmady 208 

Calvert v. Godfrey 357 
Camden v. Mullen 169, 170 

Camelin v. Palmer Co. 72 

Cameron i'. Baker 279 

V. Malcolm 24 

Cammack v. Lewis 210 



XXXIV 



TABLE OF CASES. 





Section 


Campau v. Sliaw 


295 


Campbell v. Campbell 


254, 267 a, 

270 

52, 252 a, 487 


V. Cooper 2 


V. Galbreath 80, 


117, 189,191 


V. Gullatt 


26 


t;. Ingilby 


3!)9 


V. Mackay 


235, 334, 340 


V. Stakes 


263, 424 


i\ Twemlow 


53 


?». Wallace 


203 


Campion v. Cotton 


174, 203 


Canajolinrrie v. Jolmson 


278 


Canby v. Porter 


89 


Caney v. Bond 


352 


V. Pal ton 


61,68 


Canjolle v. Ferrie' 


225 


Cami V. Williams 


457 


Cannel v. Buckle 


176, 399 


Cannon v. Alsbury 


29, 402 


V. Cannon 


225 


V. Stuart 


457 


Canovar v. Cooper 


252 a 


Cantine v. Phillips 


71 


Cape V. Cape 


105 


Capehart r. Huey 


341 


Capel V. Powell 


221 


Capps V. Hickman 


339 


Card V. Jaffray 


177 


Cardress, In re 


399 


Carew v. Rutherford 


456 


Carey v. Berkshire 


77, 78, 259 


Carl I'. Wonder 


75 


Carleton v. Lovejoy 


82 


Carlisle v. Town of Shelon 78 


V. Tuttle 


230, 329 


Carll V. Prince 


19 


Carlj'sle v. Carlysie 


353 


Carmicliael v. Hughes 


238 


V. Wilson 


338 


Carnahan v. Alderdice 


404 


Carne v. Brice 


106 


Carow V. Mowatt 


304 


Carpenter v. Carpenter 


140, 425, 446 


V. Leonard 


151 


V. McBride 


349 


V. Mitchell 


148 


V. Pridgen 


426 


Carr v. Carr 


82, 249 


V. Clougli 


407, 409, 446 


V. Taylor 


83 


Carrell v. Potter 


407, 435, 440 


Carrol v. Bird 


476 


Carroll v. Corbitt 


377 


V. McCoy 


273 


Carskadden v. McGhee 


343 


Carson i'. Watts 


252 a 


Carter ?». Carter 


114, 218 


V. Grlmshaw 


270 


V. Howard 


64 


V. Montgomery 


14 



Section 

428 

212 

173 

69 

118 

399 

448 

386 

194 

188 

86 

75 

93 

187 

87 

187 

399 

395 

349 

131 

260 

7 

491 

205 

459 

492 

430 

261 

440 

77 

472 

82, 390 

116,119 

177 

345 

319 

395 

263 

435, 437 

404 

380, 446 

372 

386, 388 

867 

338 

492 

148 

217 

V. New York, &c. E. R. Co. 490 

V. Tibbits 342, 352 

V. Williams 145 

Chappell V. Doe 448 

V. Nunn 61, 67 

Chappie !•. Cooper 199, 413, 415 

Charles v. Coker 124, 137 

Chase v. Chase 221 

V. Elkins 268 

V. Hatliaway 308, 311 

V. Smith 267 « 

Chatterton v. Young 143 

Cheatham v. Hess 188 



Carter v. Towne 

V. Wann 
Cartledge r. CutlifE 
Cartvvright r. Bate 

V. Cariwrigiit 
Caruthers i'. Carutliers 
Carver v. Carver 
Cary v. Cary 
Case V. Colter 

IK Phelps 
Cassedy v. Jackson 
Cassin v. Delany 
Castle V. Wilkinson 
Caswell V. Hill 
Cateret v. Paschall 
Cathcart v. Robinson 
Catherine Strong, In Be 
Cathing r. State 
Cato V. Gentry 
Caton V. Eideout 
Caughey '•. Smith 
Caulk f. Picou 
Cavanaugh v. Dinsmore 
Cave v. Roberts 
Cawthorn v. Cordrey 
Cnyzer v. Taylor 
Central R. R. v. Brimson 
Certwell r. Hoyt 
Chadbournc v. Eackliff 
Chamberlain v. Hazlewood 
Cliamberlin v. Morgan 
Chambers v. Perry 

V. Richardson 

V. Sallie 
Chambles v. Vick 
Champncy, Ex parte 
Chandler v. Commonwealth 

i\ Deaton 

V. Glover 

V. McKinney 

V. Simmonds 
Chaney v. Smallwood 
Chanslor v. Chanslor 
Chapiu V. Livermore 
Chapline v. Moore 
Chapman v. Erie E. 

V. Foster 

V. Gray 



TABLE OF CASES. 



XXXV 



Section 
Clieek V. Waldrum 89 
Clieesman v. Exall 477 
Cheever r. Congdon 388 
V. Wilson 132, 133 
Cheney v. Arnold 27, 28 
V. Pierce 72 
Cherokee Lodge v. White 114 
Cheshire v. Barrett 435, 441 
Chesley r. Cliesley 53 
Clietwynd v. Clietwynd 249 
Cheuvete v. Mason 154 
Chew's Instate 31G 
Chicago R. v. Donahue 492 
Chicago, &c. R. R. Co. v. Jackson 492 
V. McCartliy 4G1 
Chihl r. Sampson 150 
Childress v. Cutter 7 
V. Mann 67 
Chikls V. McChcsney 155 
Ciiiles V. Nail Mill Co. 474 
Ciiilton V. Cabhiess 381 
Chitwood V. Cromwell 343 
Choen v. Porter 70 
Chorpenning's Appeal 348, 386 
Chretien v. Husband 85 
Christensen v. Stumpf 170 
Chubb V. Stretcli 174 
Chunot V. Larson 72 
CInirch V. Jaqnes 128 
V. Mansfield 490 
Churchill v. Dibbin lOS 
Cincinnati v. Stone 461 
Cincinnati, &c. R. R. Co. v. Clark- 
son 475 
City of Chicago v. Major 429 
V. Starr 429 
City Council v. Van Roven 58 
Clamorgan v. Lane 439 
Clanton v. Burges 187 
Clapp V. Greene 254 
V. Stoughton 83, 89 
Clarges ?;. Albemarle 208 
Claridge v. Crawford 449, 450 
V. Evelyn 394 
Clark, In re 338 
V. Bank of Missouri 119 
V. Bayer 75, 251 
V. Burgh 88 
I'. Burnside 350 
V. Casler 343 
V. Cassidy 22 
V. Clark 40, 114, 193, 222, 241 
V. Field 23, 2G 
V. Fitch 207 n 
V. Garfield 353 
V. Goddard 419 
V. Killian 187 
V. McCreary 114 
V. Montgomery 304, 339, 377 
V. Rosenkrans 188 
V. Smith 255 



Clark V. Tompkins 

V. Turner 

V. Waterman 

V. Watson 

V. Whitaker 
Clark's Appeal 
Clarke v. Clay 

p. Cordis 

V. Darnell 

t'. Gilmanton 

t'. Leslie 

V. McGeihan 

V. Windham 

V. Wi'ight 

V. Van Surlay 
Clarke's Appeal 
Claussen v. La Franz 
Clawson v. Clawson 
Clay V. Brittingham 

V. Clay 
Clayton v. McKinnon 
Cleaveland v. Mayo 
Cleaver v. Kirk 
Cleghorn v. N. Y. Central R. 
Clemenstine v. Williamson 
Clement, Re 

V. Mattison 

V. Sigur 
Clements v. Crawford 
Clemson v. Bush 
Clerk i\ Laurie 
Cleveland v. Hopkins 
Clcvestine's Appeal 
Clifford V. Laton 
Clifton 71. Goodbun 
Clinton Man. Co. v. Hummell 

V. Rowland 

V. York 
Clive r. Carew 
Clodfelter v. Best 
Cloud V. Hamilton 
Clough V. Bond 

V. Clough 

V. Russell 
Clowes V. Clowes 

V. Van Antwerp 
Coates r. Gerlach 

V. Wilson 
Cochran v. McBeath 

V. Van Surlay 
Cochrane, In re 
Cockaj'ne, Ex parte 
Cockrell v. Cockrell 
Cocks V. Simmons 
Codrington v. Codrington 
Coe V. Wager 
Coe's Trusts, In re 
CoflSn V. Bramlitt 

V. Morrill 

V. Shaw 
Coham v. Coham 



Section 

352, 373 
449 
468 
450 
370 
322 
372 

303, 330 
319 
451 

412, 414 
188 
124 
281 
330 
89, 99 
86 
122 
302 

353, 354 
385 
203 
272 
490 
436 

316, 319 
18 

317, 343 
225 
451 

134, 1.38 

308 

124 

63 

281 

165 

241 

267 a 

140 

352 

252 a, 267 a 

198 

399 

190 

23 

348, 375, 388 

188, 189, 191 

411 

174, 176, 180 

330 

45 

298 

317 

448 

221 

273 

240, 338 

353 

92 

252 a 

301 



XXXVl 



TABLE OF OASES. 



Section 

Cohen v. Armstrong- 433 

V. Dry Dock R. 490 

V. Shyer 338 

Colburn v. Patmore 478 

V. State 369, 377 

V. Woodworth 472 

Colby V. Lamson 168 

Colcock V. Ferguson 404 

Colcord V. Swan 95 

Cole V. Cole 18, 248 

V. Eaton 337, 343 

V. Gourlay 361, 363 

V. Pennoyer 439, 440 

V. Sceley 56 

V. SlmrtleflF 56 

Coleman ?;. Davies 388 

V. Hallowell 200 

V. Semmes 153 

V. Smith 324 

Coles V. Allen 372 

V. Trecothick 179, 180 

Collett V. Dickenson 158 

Collins V. Brook 450 

V. Collins 23, 217 

V. Evans 470 

V. Hoxie 281 

V. Mitchell 66 

i>. Price 472 

V. Vining 339 

Colston V. Morris 246 

Colter V. Mclntire 366 

Coltman r. Hall 332 

Colton ». Goodson 316 

Columbine v. Penhall 174 

Colvin V. Currier 122 

r. Holbrook 481 

Comegys v. Clarke 150 

Commissioners v. Hildebrand 65 

Commonwealth v. Addicks 248 

V. Atkinson 457 

V. Baird 467 

". Briggs 248 

V. Cox 367, 377 

V. Curren 456 

V. Fee 278 

V. Feeney 50 

V. Fletcher 154 

V. Gamble 419 

r. Green 395 

V. Hamilton 237 

?'. Hutchinson 398 

V. Kcnney 17 

V. Lewis 50 

V. McAfee 44 

V. Mead 395 

V. M'Keagy 251 

V. Moore 457 

V. Mnnsey 50 

V. Munson, 26, 27, 29 

V. Murray 254 

V. Ferryman 16 



Section 



Commonwealth v. Pratt 


50 


V. Reed 


333 


V. Rhoades 


329, 377 


V. St. John's Asylum 


251 


V. Tryon 


50 


V. Van Lear 


457 


Compton V. Compton 


805 


V. Payne 


473 


Congdon r. Perry 


475 


Conkey v. Dickinson 


324, 373 


Conklin v. Doul 


164, 165 


V. Ogliorn 


437 


V. Thompson 


423 


Conlin V. (^antrell 


144 


7'. Charlestown 


461 


Conn V. Conn 


237 


V. Coburn 


414 


Conn. L. Ins. Co. v. McCormick 150, 155 


Connelly v. Weatherly 


314 


Connolly v. Hull 


413 


Conovar v. Cooper 


267 a 


Conrad v. Lane 


425 


I'. Le Blanc 


146 


V. Shorn 


155 


Conroe v. Birdsall 


404, 405, 425 


Converse v. Converse 


190 


Conway v. Reed 


428 


V. Smith 


151 


Cook V. Baker 


172 


V. Bradley 


265 


I'. Cook 


248 


V. Fearn 


183 


V. Ligon 


71 


V. Rainey 


374 


V. Rogers 


448 


Cooke V. Beale 


317 


Cooke's Case 


304 


Cookson V. Toole 


158 


Coolidge I'. Parris 


75 


V. Smith 


150, 157 


Coombs V. Janvier 


380 


i\ Read 


114 


Coomes v. Houghton 


461 


Coon V. Cook 


824 


Cooney i'. Woodburn 


127 


Cooper V. Alger 


162 


V. Cooper 


193 


V. Ham 


166, 168 


V. Hepburn 


301 


i\ Macdonald 


107 


V. Maddox 


196 


?\ Martin 


61, 237, 273 


V. Phillips 


468 


V. Rhodes 


391 


V. State 


429, 467 


V. Summers 


303 


V. Sunderland 


361 


V. Thornton 


304 


Cooper's Case 


816 


Copeland v. Cunningham 


165 


u. State 


278 



TABLE OF CASES. 



XXX VU 







Section 




Section 


Copp V. Copp 


300 


316, 317 


Cray v. Mansfield 


388 


Coppin V. 




83 


Credle v. Carrawan 


174 


Corbet !;. Tottenham 




287, 318 


Creen v. Wright 


464 


Corbin v. American Mills 




4<Jl 


Crehore v. Crehore 


23 


Corbitt V. Carroll 




366, 382 


Crenshaw v. Crenshaw 


342, 373 


Corcoran v. Allen 




339, 349 


Cresinger v. Welch 435, 


439, 446 


Cordova, Re 




300, 305 


Creuze v. Hunter 


246 


Corey v. Burton 


407 


409, 446 


Cricket v. Dolby 


281 


V. Corey 


2G7 u, 208 


Crocker v. Molyneux 


458 


Corgell V. Dunton 




138 


Croft ('. Alison 


490 


Corlass, In re 




226 


V. Terrell 


317 


Corn Excliange Ins. Co. v. 


Babcock 145 


Crofts V. Middleton 


134 


Cornelia v. Ellis 




61 


V. Waterhouse 


490 


Corpe ('. Overton 




408, 414 


Cromwell v. Benjamin 


65, 241 


Corrie v. Corrie 




248 


Cronise v. Clarke 


404 


Corrie's Case 




397 


Crook V. Hill 


281 


C'orrigan v. Kiernan 


299 


300, 311 


Crooks V. Turpin 


326 


V. Union Sugar Refinery 


490 


Cropsey v. McKinney 


82, 164 


Corwin v. Shoup 




435, 448 


Crosbie v. Hurley 


394 


Cory V. Gertcken 




389 


Crosby v. Crosby 


324, 374 


Costigan v. Mohawk R. R 


.Co 


473 


Crose V. Kutledge 


53 


Cothran v. Lee 


61, 63, 64 


Cross V. Guthery 


77 


Cotteen ;-•. Missing 




189 


V. Noble 


94 


Cotterell v. Homer 




174 


Grouse v. Morse 


19D 


Cotton V. State 




367 


Crowell's Appeal 


373 


V. Wolf 




318 


Crozier v. Bryant 


77 


Cottrell's Estate, In re 




238, 239 


Crozier's Appeal 


206 


Countess da Cunlia, Goods 


of 


329 


Crugery. Douglas 


190 


Counts V. Bates 




402 


Cruger v. Heyward 


238 


Courtright t>. Courtright 




237, 241 


Crumb, Ex parte 


316 


Coverdale r. Eastwood 




178 


Crump V. Gerock 


372 


Covington v. Leak 




353 


V. McKay 


77 


Cowan V. Anderson 




343 


Crutchfield, Ex parte 


316,347 


V. Mann 




164, 165 


Crutchfield's Case 


305 


Cowan's Appeal 




389 


Crymes v. Day 


402 


Cowden v. Pitts 




92 


Cuekson r. Stones 


474 


V. Wright 




259, 262 


Cuckson V. Winter 


394 


Cowell 11. Daggett 




255 


Cummings v. Cummings 206, 


338, 372, 


Cowles V. Covvles 




19, 316 




374 


V. Morgan 




145 


I'. Powell 


406, 409 


Cowley V. People 




244 


Cummins v. Sharpe 


143 


V. Robertson 




67 


Cunningham v. Cunningham 


227, 373 


Cowls V. Cowls 




239 


i\ Pool 


374 


Cowton V. Wickersham 




94 


V. Reardon 


199 


Cox V. Combs 




22 


Currie v. Turnbull 


27 


V. Hoffman 




72 


Curry i: Bott 


120 


V. Kitchin 




67 


V. Fulkinson 


198 


V. Midland Counties R. R 


Co. 489 


Curtin v. Patton 404 


437, 445 


V. Morrow 




198 


Curtis I'. Bailey 


373, 377 


V. Muncey 




457 


V. Curtis 250 


272, 457 


V. Storts 




240, 262 


i;. Engel 


128 


Cozine v. Home 




305 


V. Hobart 


350 


Cozzens v. Whitney 


136, 


143, 149 


I'. Rippon 


301 


Cramer v. Reford 




81, 108 


Curtiss V. McDougal 


446 


Crane v. Barnes 




372 


Curtton V. Moore 


56 


V. Brice 




82 


Gushing v. Gushing 


272 


V. Crane 




226 


Cussons V. Skinner 


463 


V. Kelley 




145 


Cutler v. Cutler 


38 


Cranston v. Sprague 




366 


V. Powell 


472, 473 


Cranz v. Kroger 




253 


Cutting V. Seabury 


260 


Crapster v. GriflSith 




391 


Cuyler v. Wayne 


352, 361 



XXXVlll 



TABLE OF CASES. 



D. 

Dagley v. Tolferry 
D'Aguilar v. D'Aguilar 
Dailey v. Dailey 
Dain v. Wyckoff 
Dale ;;. Robinson 



Section 

286, 304 

46 

248 

261, 262 

136 



Daley v. Norwich & Worcester 

R. R. Co. 428, 429 

Dallam v. Walpole 137 

Dalrymple v. Dalrymple 23, 26, 27 

Dalton, In re 399 

D'Alton V. Alton 249 

V. D'Alton 235 

Dalton V. Gib 413 

V. Halpin 279 

V. Jones 3;59 

V. State 298 

Damarell v. Walker S16, 317 

Damon v. Osborn 4b8 

Dana V. Coombs 438,441 

V. Short 464 

V. Stearns 435 

DanenhofEer v. State 244 

Daniel v. Hill 230, 334 

V. Newton 306 

V. Sams 225 

V. Swearengen 461, 487 

Dankel v. Hunter 94 

Dannelli v. Dannelli 226 

Darby v. Calligan 148 

Dardier v. Chapman 86 

Darkin v. Darkin 131 

Darley v. Darley 105, 238 

Darling v. Noyes 241 

Darlington v. Pulteny 90 

Darlington's Appeal 155 

Daubenspeck v. Biggs 183 

Daubney v. Hughes 70, 71 

Davenport r. Bishop 174 

V. Olmstead 377 

Davey v. Turner 94 

Davidson v. Graves 175 

V. Lanier 150, 188 

V. State 398 

V. Young 439 

Davies v. Davies 399, 473 

V. Jenkins 159 

V. Locket 450 

V. Solomon 77 

V. Turton 443 

V. Williams 261 

Davis y. Baugh 397 

V. Cain 124 

v. CaldweU 411,412,413 

V. Davis 92, 188 

V. Detroit, &c. R. R. Co. 492 

V. Dickson 376 

V. Dinwoody 63 

V. Dudley 405, 437, 439 

V. Foy 114 

V. Goodenow 269, 273 





Section 


Davis V. Harkness 


338 


V. Herrick 


187 


!'. Jones 


93 


V. McCurdy 


367 


V. Meredith 


488 


r. Prout 


105 


V. Roberts 


338 


Davis's Appeal 


82,92,347 


Davison, Matter of 


240 


V. Atkinson 


104, 111 


V. Johonnot 


308, 330 


Dawes v. Howard 


239 


V. Rodier 


166 


Dawson, Ex parte 


829 


V. Dawsou 


265, 281 


V. Jay 


a34 


V. Massey 


884, 389 


Day t'. Burnham 


64 


V. Croft 


105 


V. Everett 


252 


V. Messick 


56 


V. Oglesby 


252 a 


V. Padrone 


83 


Dayton v. Dusenbury 


114 


V. Walsh 


167 


Dean v. Bailey 


154 


V. Brown 


111 


V. Richmond 


222 


V. Shelly 


95 


V. State 


225 


Deane v. Annis 


241 


Deare v. Soutten 


61 


Deason v. Boyd 


435 


De Bathe v. Lord Fingal 


299 


Debenham v. Mellon 


63, 64, 69 


Dedham v. Natick 


239 


Deerfield v. Delano 


493 


Deery v. Cray 


94 


Deford v. Mercer 


385 


Degg V. Midland R. R. Co. 


492 


De Graff y. N. Y. Central R 


429, 492 


Delafield v. Tanner 


451 


De la Montagnie v. Union Ins. Co. 352 


Delano v. Blake 


435 


V. Blanchard 


72,82 


De Leon v. Echeverria 


472 


De Manneville v. De Manneville 246, 




288, 3-34 


Demarest v. Wynkoop 


94, 137 


De Mazar v. Pybus 


300 


Deming v. Williams 


189, 217 


Demyer v. Souzer 


487 


Den V. Demarest 


95 


V. York 


188 


Dengenhart v. Cracraft 


360 


Denison v. Dcnison 


26,27 


Dennis v. Clark 


258 


V. Crittenden 


53 


Dennison v. Page 


225 


Dennysville v. Trescott 


267 o 


Dent V. Bennett 


389 



TABLE OF CASES. 



XXXIX 



Section 

Dermott v. Jones 475 

Derocher v. Continental Mills 443 

l)e Roo I'. Foster 425 

Descelles v. Kadnius Ci(J 
l)e Thoren r. Attorney-General 26, 27 

Devanbagh v. Devanbagh 19 

Dewey, Petitioner 394 

De Witte v. Palin 35ii 

Dexter v. Blanchard 241 

V. Cranston 301 

Diaper v. Anderson ' 372 

Dibble y. Dibble 301,311 

t'. Jones 426 

Dickens v. New York Central R. R. Co. 

78 

Dickenson v. Blisset 18 

Dickerman v. Graves 53 

Dickorson r. Brown 26 

r. Dickerson 316 

Dickinson v. Winchester 253 

Dicks V. Grissoni 267 a 

Dickson v. Dickson 13 

V. Miller 128 

Dieringer v. Meyer 402 

Dierker v. Hess 267 a, 268 

Diettrich v. Heft 348 

Dilk V. Keighley 408 

Dill V. Bowen 446 

Dillaye v. Greenougli 176, 183 

Dillon V. Lady Mount Cashell 318 

Disbrow v. Henshaw 316 

Ditcham v. Worrall 433 

Ditson V. Ditson 13 

Dixon V. Bell 486 

V. Dixon 110, 137, 140, 218 

V. Hamond 477 

V. Homer 875 

V. Hiirrell 64, 69 

V. Merrett 96, 405, 438 

V. Olmius 105 

Doane v. Covel 457 

Dobbins V. Higgins 472 

Dobson V. Butler 221 

Docker v. Somes 386 

Dodd V. Benthal 96 

Dodge V. Favor 267 n 

Doe V. Hassell 386 

V. I-Iimelick 480 

V. Jackson 863 

V. Manning 187 

V. Rusham 187, 189 

V. Weller 90 

I'. Wilkins 87 

Doker v. Hasler 53 

Dollner v. Sno\y 58 

Dominick v. Michael 402, 440 

Donahoe v. Richards 260 

Donne r. Hart 88 

V. Harte 131 

Donnington v. Mitchell 197 

Donovan v. Needham 240 



Section 

Donovan's Appeal 146 

Doolan r. Blake 110 

Dorin v. Dorin 281 

Dorman v. Ogbourne 303 

Dorr, Petitioner 847 

Dorrell v. Hastings 411 

Dorslieimer u. Roorback 453 

Douglas V. Gausman 162 

V. Watson 444 

Douglas's Appeal 339, 372 

Douglass V. Fulda 150 

V. Slate 388 

Dover v. McMurphy 237 

Dow V. Clark 450 

V. Evster 61 

V. Je'well 94 

Dowling, In re 94 

V. jMaguire 134 

Dovvnin )'. Sprecher 303 

Downing v. Peabody 367 

V. Seymour 88 
Downs V. N. Y. Central R. R. Co. 429 

Doyle V. Kelly 68 

Drake v. Ramsey 439 

Drane v. Bayliss 324 

Draper v. Draper 398 

V. Joiner 354 

Draper's Case 87 

Drayton v. Reid 462 

Dresel o. Jordan 60, 72 

Drew r. Peck well 457 

V. Sixth Avenue R. R. Co. 262 

Driver v. Driver 453 

Druet V. Druet 279 

Drumb r. Keen 251 

Drury v. Conner 350 

V. Drury 399 

V. Scott 107 

Drybutter v. Bartholomews 91 

Dryer v. Lewis 473 
Dublin & Wicklow R. v. Black 442, 451 

Dubois V. Jackson 114 

Dubose V. Wheddou 404, 414 

Du Boulay v. Du Bonlay 280 

Duckworth w. Johnson 259, 262 

Duddy V. Greshani 82 

Duel V. Harding 486 

Duffey V. Shock ey 460 

Dufield V. Cross 252 

Duke V. State 303 
Duke of Beaufort v. Berty 246, 316, 321 
Duke of Hamilton c. Lord Mohun 888 

Dula V. Young 126 

Dumain v. Gwvnne 251 

Dumaresly v. Fishly 26, 27 

Dumas v. Neal 165 

Dunbar v. Tilize 145 

Duncan c. Cashin 162 

Duncan v. Crook 292 

V. Duncan 26, 27 

V. Pope 279 



xl 



TABLE OF CASES. 



Section 



Duncan v. Roselle 




162 


Dunham v. Hatcher 




299 


Dunn V. Lancaster 




210 


V. Sargent 


84 


114 


Dunnahoe ;;. Williams 




72 


Dun ton t>. Brown 408, 409, 


442 


446 


J)untze V. Levett 




13 


Dupre V. Rein 


217 


218 


Dupuy V. Welsford 




449 


Durant v. Ritchie 




192 


Durell V. Hay ward 




199 


Duress v. HornefFer 




161 


Durgin !\ Munson 




492 


Durnford v. Lane 




3lt9 


Durrant v. Friend 




281 


Dutcher v. Hill 




361 


Dutton V. Dutton 




217 


Dyce Sombre's Case 




311 


Dye V. Kerr 




269 


Dyer, Matter of 


301 


311 


V. Brannock 




20 


V. Cornell 




357 


Dyer's Case 




301 


Dygert v. Remerschneider 




188 



E. 



Eager v. Grimwood 260, 261, 262 

Eagle Fire Ins. Co. v. Lent 405 

Eames v. Sweetser 71 

Earl V. Dresser 329 

Earl V. Ferris 105, 134 

Earl of Ilchester, .E.r/)arte 287 

Earl of Ilcliester's Case 333 

Earl of Shaftesbury v. Lady Hannam 287 

Earle r. Crum 326 

V. Dawes 277 

V. Peele 414 

V. Reed 414 

Eastland v. Burchell 68 

Eaton V. Hill 424 

V. Nason 94 

EbersoU v. King 79 

Eberts v. Eberts 388 

Echols V. Fleming 472 

Eckford v. De Kay 385 

Edgar v. Castello 259 

Edgarfon ;•. Wolf 446 

Edgerly v. Edgerly 190 

V. Shaw 435 

Edgerton r. Jones 155 

Edmonds' Appeal 44 

Edmondson r. Machell 261 

Edrington v. Harper 89 

r. Leach 474 

'Edwa.vds, Ex parte 301 

In re 448 

V Crume 263 

". Davis 241, 265 

r. Freeman 272 



Edwards v. Jones 

V. State 

V. Stevens 

V. Taliafero 
Eichelberger's Appeal 
Eitel V. Walter 
Elderton v. Emmens 
Eldred v. Drake 
Eldridge v. Lippincott 

V. Preble 
Elgin's Case 
Elijah V. Taylor 
Eliott I'. Gower 
Ellington v. Ellington 
Elliott V. Bently 

V. Horn 

V. Teal 
Ellis V. Ellis 

V. Scott 

V. Woods 
Ellison, Matter of 

V. Ellison 
Ellsworth V. Hinds 
Elrod V. Lancaster 

V. Myers 
Elton V. Shephard 
Elwell V. Martin 
Elzey V. Elzey 
Emerson, Appellant 

V. Spicer 
Emery v. Emery 

V. Gowan 

V. Kempton 

V. Neighbour 

V. Ware 

V. Vroman 
Emmet v. Korton 
Emmons v. Murray 
Enders r. Beck 
England v. Downes 
English V. Foxall 

V. Wilson 
Epperson i-. Nugent 
Errat v. Barlow 
Eslinger i'. Eslinger 
Es]iey V. Lake 
Essex V. Atkins 
I'jSscx v. Essex 
Estill V. Rogers 
Etherington v. Parrott 
Ewers v. Hutton 
Ewing V. Helm 
Evans v. Bennett 

V. Chester 

V. Davies 

V. Evans 

V. Knorr 

V. Nealis 

V. Walton 
Evarts v. Nason 
Evelyn v. Templar 



Section 

189 

50 

169 

351 

342 

241 

469 

187 

298 

114, liO 

318 

154 

130 

261 

162 

416 

202 

414 

372 

124 

263 

189 

92 

386 

413 

106 

424 

18 

375 

290 

66 

261 

252 a 

68 

93,94 

361 

63, 64, 68 

409, 439 

75 

181 

173 

473, 475, 478 

412, 413 

240 

7 

326, 389 

138 

19 

26 

63, 66, 69 



120 

474 
57 
281 
40 
124 
117 
261 
375 
187 



374, 



TABLE OF CASES. 



xli 





Section 




Section 


Everett v. Sherfey 252 


a, 260, 207 a 


Fewings v. Tisdal 


458 


,472 


Evcritt V. Everitt 


183 


Fidler v. Higgins 




357 


Everson v. Carpenter 


40 J, 437 


Field r. Goldsby 




361 


Evertson v. Evertson 


3S4 


V. Lucas 




343 


Eyre v. Countess of Shaftesbury 313, 


V. Moore 




399 




321, 333, 390 


V. Schieffelin 




350 


Eystra v. Capelle 


153 


V. Sovvle 

V. Torrey 

Fielder v. Hanyer 




134 

382 
200 


F. 




Fields V. Law 
Filleul r. Armstrong 




298 
462 


Fairbank v. Haentzsclie 


492 


Filliter c. PhipparU 




490 


Fairland v. Percy 


204 


Filmer v. Lynn 




63 


Fairlie v. Hastings 


480 


Finch V. Finch 




175 


Falmouth Bridge Co. v. Tibbetts 95 


i\ Gore 




457 


Fanning v. Chadwick 


382 


Finley v. Jowle 




449 


Fant V. McGowan 


319 


Finn v. Finn 




53 


Farmer v. McDonald 


255 


Finnell v. O'Neal 




354 


Farmers' Bank v. Brooke 


187 


Finney v. State 




306 


V. Long 


188 


Firebrace v. Firebrace 




218 


Farmington r. Jones 


237 


Firth V. Denny 




206 


Farnsworth v. Oliphant 


373 


Fish V. Miller 




389 


V. Richardson 


251 


Fislier v. Fisher 




269 


Farr r. Sherman 


150 


V. Lunger 




457 


Farrance v. Viley 


338 


V. Mowbray 




404 


Farrar v. Bessey 


57 


Fisk I'. Flores 




7 


Farrell v. Farrell 


267 « 


V. Lincoln 




337 


V. Ledwell 


53 


Fitcli, Re 




329 


V. Patterson 


114, 120 


V. Ayer 




124 


Farrer v. Clark 


806 


V. Peckham 




268 


Farrington c Wilson 


303 


V. Rathbun 




119 


Farvvell v. Boston & Worcester R. 


Filler v. Fitler 




237 


R. Co. 


492 


Fitts V. Hall 




424 


V. Steen 


354, 370 


Fitzgerald v. Chapman 




218 


Faucett v. Currier 


150 


V. Fitzgerald 




290 


Faulkner f. Davis 


356 


Fitzgibbon v. Lake 




361 


V. Erie R. R. Co. 


492 


Fitzliue r. Dennington 




391 


Favorite v. Booher 


377 


Fitzpatrick v. Fitzpatrick 


20,30 


Fawcet v. Beavres 


487 


Flanagan v. Flanagan 




92 


Favvcett i\ Cash 


458 


Flanders v. Abbey 




146 


Fay V. Ilurd 


316, 319 


Fleet V. Perrins 


83 


200 


i;. Taylor 


369 


Flenner v. Flenner 




179 


Fears v. Brooks 


124, 136 


Fletcher v. Ashley 




181 


Feeley, Re 


304, 307 


V. Fletcher 


345 


353 


Felch V. Allen 


492 


V. People 




244 


Feller v. Alden 


154 


V. Walker 




352 


Fellows V. Tann 


123 


Flinn, Re 843 


346, 


350 


Felthani i\ England 


492 


Floyd I'. Calvert 




26 


Felton V. Long 


382, 388 


V. Johnson 




385 


Fendall v. Goldsmied 


40 


Flynn v. Beebe 




492 


Fen ton v. Lord 


150 


Fogler V. Buck 


370 


385 


Feran v. Rudolphsen 


168 


Folger V. Heidel 


889 


388 


Ferguson v. Bell 


405, 439 


FoUit V. Koltzow 




279 


V. Bobo 


420 


Foltz's Appeal 




372 


V. Brooks 


75 


Fonda v. Van Home 270, 


285 


405 


V. Lowery 


389 


Forbes v. Moore 




7 


V. Reed 


58 


Ford V. Miller 




337 


Fernslee v. Moyer 


335 


;;. Monroe 




262 


Fetrow v. Wiseman 


404 


V. Phillips 




435 


Fettiplace v. Gorges 


131 


V. Stuart 


173 


174 


Fewell V. Collins 


77 


V. Teal 




94 



xlii 



TABLE OF CASES. 



Foreman v. Foreman 

V. Murray 
Foresinan ;;. Haag 
Forinari v. Marsli 
Forstall, Succession of 
Forster v. Fuller 
Forsyth v. Hastings 
Fortier, hi re 
Foss V. Foss 
Foster v. Alston 

V. Bisland 

V. Denny 

V. Essex 

V. Essex Bank 

V. Kerr 

V. Mott 

V. Waterman 

V. Wilcox 
Foteaux i'. Lepage 824, 338, 
Fountain v. Anderson 

V. Boodle 
Foust v. Chamblee 
Fowle V. Freeman 

V. Tidd 
Fowler v. Colt 

V. Frisbie 

V. Rice 110, 

V. Seaman 

V. Shearer 
Fowlkes V. Baker 
Fox, Ex parte 

V. Davis 

V. Doherty 

V. Hawks 104, 

V. Jones 

V. Kerper 

V. Minor 
Frampton ?'. Frampton 
Francis v. Felmot 
Frank v. New Orleans 
Frankfort v. New Vineyard 
Franklin i". Mooney 

V. South-Eastern R. R. Co 
Franks v. Martin 
Eraser v. Zylioz 
Frasher v. State 
Frazier v. Massey 

V. Rowan 

V. Steenrod 
Frecking v. Rolland 
Frederick v. Cox well 

V. Moore 
Freeman v. Bridger 

V. Flood 

V. Freeman 

V. Hartman 

V. Hill 

V. Holmes 

V. Robinson 
Freestone v. Butcher 
Freiberg v. Branigan 



Section I 



Section 



448 


French v. Allen 


275 


338 


V. Currier 


353, 354 


361 


V. Davidson 


339 


357, 448 


V. French 


186 


232 


V. Motley 


188 


_ 344 


V. Tliompson 


345 


435, 457 


Freto V. Brown 


237, 273 


205 


Freund v. Washburn 


829 


23 


Fridge v. Stale 


388, 404 


248, 333 


Friend v. Thompson 


41, 237 


377 


Friend's Case 


468 


317 


Friermutli v. Friermuth 


269 


4U1 


Frierson '•. Travis 


451 


263 


Frost V. Tarr 


273 


124 


V. Willis 


69 


305 


V. Winston 


354 


232 


Fry V. Derstler 


77 


95 


V. Fry 


123 


354, 376 


Fudkins v. Walker 


443 


345 


Fulgham v. State 


44 


476 


Fuller V. Jewett 


492 


372 


V. Naugatuck R. R. Co. 


78 


177 


V. Wing 


348, 370 


162 


Fullerton v. Jackson 


290 


272 


Fulton V. Fulton 


46 


77 


V. Smith 


272 


120, 155 


Fuqua, Succession of 


305 


151 


V. Hunt 


343 


95 


Furlong v. Bartlett 


446 


241 


V. Hyson 


64 


188 


Furman v. Coe 


348 


217, 218 


V. Van Sise 


261 


210 


Furrillio v. Crowther 


279 


105, 189 


Fussell V. Dowding 


221 


155 


Fynn, /)( re 


246 


349 


Fynn's Case 


304 


308, 343 






216 






443 


G. 




259 






267 a 


G. r. G. 


19 


419 


Gaffney v. Hayden 


443 


262 


Gage V. Dauchy 


154 


178, 180 


V. Reed 


57,75 


361 


Gager v. Henry 


361 


13 


Gailey r. Crane 


436 


402 


Gaines v. Mining Co. 


225 


443 


V. Poor 


124 


361 


V. Spann 


299 


167 


Gainor v. Gainor 


181 


93 


Galbraith r. Black 


270 


367 


Gale V. Gale 


174 


412, 413 


I'. Parrot 


252, 267 a 


129 


r. Wells 


349, 389 


269, 274 


Galvin v. Crouch 


261 


181 


Gamber v. Gamber 


120 


176 


Gandall v. Pontigny 


472 


61 


Gann v. Worman 


259 


241 


Gannard v. Eslava 


189 


63 


Gannaway v. Tapley 


384 


168 


Gans V. Williams 


115, 116 



TABLE OP CASES. 



xliii 



Gardiner v. Holt 
Gardner v. Baker 

V. Gardner 

V. Heyer 

V. Hooper 

V. Sehooley 
Gar in v. Burton 
Garlick v. Strong 
Garner v. Board 

V. Gordon 
Garth V. Howard 
Garthshore v. Clialie 
Garver v. Miller 
Garvin ?'. Ingram 

V. Williams 
Gary !>. Cannon 

V. James 
Gaston v. Frankum 
Gaters v. Maddeley 
Gates V. Davenport 
Gaudet V. Gaudet 
Gault V. Saffin 
Gazynski v. Colburn 
Gee V. Gee 

V. Scott 
Gelston v. Frazier 
Genet v. Tallmadge 
Genner v. Walker 
George, In re 

V. Ransom 

V. Spencer 

V. Thomas 

V. Van Horn 
Georgia E. R. Co. v. 
Getts, Petition of 
Geyer v. Branch Bank 
Gholston V- Gholston 
Gibbs V. Harding 

V. Merrill 
Gibson v. Commonwealth 

V. Erie R. 

V. Gibson 

V. AValker 
Gifford V. Kollock 
Gilbert v. Guptill 

V. Lewis 

V. McEachen 

V. Schwenck 

V. Wetherell 
Gilchrist v. Cator ' 
Gilker v. Brown 
Gill, Matter of 

V, Read 

V. Slieliey 

('. Woods 
Gillespie v. Bailey 

V. Burlinson 

V. Worford 
Gillet V. Stanley 
Gillett V. Camp 
Gilliat V. Giliiat 



Wynn 



35c 



Section 
451 
1S8 

137, 22G 
281 
114 

2G9, 270 
404 
188 
443 

248, 332 
489 
205 
217 
192 
389 
353 
267 a 
134 
83 

443, 473 
318 
120 
79 
128 
53 
133 
342 

411, 412 

272 

155 

189 

440 

2«1 

78 

373 

124 

44 

218 

426 

53 

492 

77 

138 

252 a 

, 372, 382 

105 

338 

321, 822 
272 
105 
393 
374 
237 
281 

155, 198 

437, 439 

124 

94 

405 

273 

287, 299 



Section 

Gilman v. Andrus 61, 64 

V. Dwight 400 

V. Eastern R. R. Co. 492 

Gilmartin v. New York 490 

Gilmore v. Rodgers 361 

Gilson V. Spear 425 

v. Zimmerman 193 

Ginn v. Ginn 252 a 

Ginochio v. Porcella 208, 212 

Giraud v. Richmond 459 

Girty v. Logan 452 

Girvin i'. Hickman 37(5 

Gishwiler v. Dodez 248 

Given v. Charron 472, 475 

V. Marr 221 

Glascott V. Warner 303 

Glass V. Glass 21 

V. Warwick 143 

Glassey v. Hestonville, &c. R. 259 

Glaze V. Blake 81, 162 

Gleason v. Emerson 221 

V. Gleason 38 

Glen, Ex parte 18 

Glenn v. Hill 61 

Glidden v. Taylor 154 

V. Unity 457 

Gloucester v. Page 305 

Glover, Ex parte 240 

V. Alcott ir.) 

V. Glover 348 

V. Ott 411 

V. Proprietors of Drury Lane 80, 

81 

Godard v. Wagner 238 

Godfrey v. Brooks 64, 164 

Goff V. Rogers 188 

Goldsmith v. Russell 174, 186 

Goldstein v. People 50 

Goleman v. Turner 343 

Gonsolis V. Gearhart 462 

Good V. Good 305 

V. Harris 124, 127 

Goode V. Harrison 408, 434, 442 

Goodenougli, In re 250, 251 

Goodliue V. Dix 493 

Goodman v. Kennell 491 

V. Pocock 472, 473 

V. Winter 363, 448 

Goodnow V. Hill 146 

Goodrich v. Bryant 217 

V. Goodrich 24V) 

V. Tracy 72 

Goodright v Straphan 90, 91 

Goodrum v. State 53 

Goodsell V. Myers 404, 435, 445 

Goodson V. Goodson 386 

Goodwin v Kelly 72 

V. Moore 449 

V. Thompson 20, 260 

Goodyear v. Rumbaugh 120 

Gordon v. Uix 265 



xliv 



TABLE OF CASES. 





Section 




Section 


Gordon v. Gilfoil 


392 


Griffiths V. Teetgen 




261 


V. Gordon 


281 


Grigsby v. Breckenridge 




208 


V. Haywood 


94 


Grindell v. Godmond 




61 


V. Potter 


241 


Griner v. Butler 




95 


Gore V. Carl 


150 


Grinnell v. Wells 


258, 2G0, 


261 


V. Gibson 


18 


Grist V. Forehand 




829 


V. Knight 


132 


Gronfier v. Puymirol 




308 


Gorman v. State 


44, 244 


Gross V. Reddy 




119 


Gornali's Case 


306 


Grove v. Nevill 




425 


Goshen v. Richmond 


18, 31 


Grover v. Aloott 




162 


Gosman v. Cruger 


58, 140 


Grubb's Appeal 




229 


Goss V. Cahill 


154 


Grunhut v. Rosenstein 




237 


Gotts V. Clark 


241 


Grute V. Locroft 




88 


Gould V. Carlton 


81 


Guernsey, Ex parte 


352 


361 


V. Hill 


124 


Guffin V. First Nat. Bank 


268 


270 


V. Webster 


89 


Guild V. Cranston 




450 


Goulder v. Camm 


105 


Guishaber v. Hairman 




124 


Goulding v. Davidson 


58 


Gulick V. Grover 




72 


Govier v. Hancock 


60 


Gum V. Swearingen 




349 


Grace ;;. Hale 


409, 411 


Gunter v. Astor 




262 


Graliam v Bennett 


226, 228 


V. Williams 




150 


I'. Davidson 


322 


Gunther v. State 




324 


V. Dickinson 


92 


Guptil V. Home 




73 


V. Houghtalin 


290 


Gurley v. Gurley 




205 


V. Londonderry 


208 


Guthrie v. Morris 




414 


Grain v. Sliipman 


190 


Guttman v. Scannell 




16f. 


Grand Rapids R. v. Showers 


260 


Guy f. Du Uprey 




351 


Grant v. Green 


43,44 


Gujnn V. McCauley 




255 


V. Whitaker 


316 


Gwaltney v. Cannon 




337 


Grantman v. Thrall 


450 


Gwin V. Vanzant 




317 


Grapengether v. Fejervary 


143 








Gravett v. Malone 


388 








Gray v. Crook 


112 








V. Durland 


261 


H. 






V. Fox 


353 








V. Otis 


72 


H. V. P. 




19 


v. Thacker 


57, 75 


Haase v. Roerschild 




238 


Green, Ex parte 


240 


Haden v. Ivey 




126 


V. Green 


446 


Hagar v. Hagar 




270 


V. Grcenbank 


424 


Haig V. Swiney 




106 


V. Hudson R. R. Co. 


78 


Hailey v. Bond 




388 


V. Johnson 


370 


V. Boyd 




376 


V. Kew River Co. 


478 


Haine v. Tarrant 




414 


V. Pallas 


164 


Haines v. Haines 


119 


,270 


V. State 


13 


V. Oatman 




450 


Greenfield Bank v. Crafts 


266 


Hair v. Hair 




38 


Greening v. Fox 


354 


Hale V. Christy 




150 


Greenly v. Daniels 


366 


V. Plummer 




188 


Greenwell v. Greenwell 


238 


Haley v. Bannister 




239 


Greenwood i'. Greenwood 


261 


Hall V. Carmichael 




181 


Greer v. Greer 


1S2 


V. Cone 




388 


Gregg I'. Gregg 


372, 373 


V. Creswell 




120 


Gregor}' v. Winston 


181 


V. Eaton 




57 


Gridley v. Watson 


188 


I'. Gerrish 




435 


Griffin v. Banks 


217 


V. Hall 


85, 268 


,340 


V. Reynolds 


75 


V. Hardy 




93 


Griffis V. Younger 


440, 442 


V. Hollander 


258, 260 


,486 


Griffith )-•. Bird 


374 


V. Jones 


322 


, 439 


V. Griffith 


112, 124 


i\ Lay 




304 


V. Parks 


867 


V. Simmons 




439 


V. Schwenderman 


405 


V. Storer 




305 



TABLE OF CASES. 



xlv 





S€ 


ction 




Section 


Hall V. Weir 




61 


Harring v. Coles 


238 


Hallenbeck i'. Berkshire R. R 


Co 


78 


Harrington v. Barfield 


277 


Ham V. Ham 




301 


Harris v. Butler 


261 


Hamaker v. Blanchard 




488 


V. Carstarphen 


389 


V. Hamaker 




18 


;;. Currier 


269 


Hamilton v. Bisliop 112, 


123 


, 124 


V. Harbeson 


124 


V. Douglas 




168 


V. Harris 


347 


V. Hamilton 


27 


, 191 


V. Harrison 


324 


V. Hector 




218 


V. Hicks 


16 


V. Moore 




316 


V, Lee 


61 


V. Probate Court 




307 


v. Morris 


66 


Hamley v. Gilbert 




238 


V. Mott 


133 


Hamlin v. Atkinson 




388 


V. Nicholas 


491 


V. Jones 




92 


V. Separks 


472 


V. Stevenson 




391 


V. Wall 


433 


Hammer v. Pierce 




259 


V. Wilhams 


150 


Hammersley v. De Biel 175, 


177 


179 


Harrison v. Adcock 


440 


Hammond v. Corbett 




254 


V. Bradley 


384 


Hammer v. Mason 




367 


V. Cage 


172 


Hammett's Appeal 




385 


V. Collins 


461 


Hampden, Case of 




288 


V. Fane 


411, 412, 413 


V. Troy 


267 a 


V. State 


14, 16 


Hampstead v. Plaistow 




27 


V. Trader 


57 


Hampton, Case of 




348 


Harriss v. Mabry 


491 


V. State 




53 


Harrod v. Harrod 


18 


Hancock v. Merrick 


66 


237 


Harshaw v. Merryman 


64 


V. Peaty 




18 


Harshberger v. Alger 


136, 144, 218 


Hancocks v. Lablache 




159 


Hart, In re 


299 


Hands v. Slaney 


394 


411 


V. Gray 


317 


Handy v. Foley 




75 


V. Grigsby 


145 


Hanks v. Deal 




431 


V. Hart 


269 


Hannen v. Ewalt 




850 


Harten v. Gibson 


281 


Hanson v. Millett 




116 


Hartfield v. Roper 


258, 429 


Hantz V. Sealy 




27 


Hartford v. Morris 


23 


Harbman v. Kendall 




447 


Hartley v. Cummings 


460, 469 


Hardenburgh v. Lakin 




94 


V. Hurle 


105 


Hardie v. Grant 




66 


V. Tribber 


281 


Hardin v. Helton 




318 


V. Wharton 


433 


Harding v. Harding 




249 


Hartness v. Thompson 


402 


V. Earned 347, 350, 


353 


360 


Harttman v. Tegart 


66 


V. Weld 




303 


Hartwell v. Rice 


272 


Hardinge, Goods of 




86 


Harvard College v. Head 


221 


Hardvvick v. Paulet 




269 


Harvey, Re 


136 


Hardy v. Waters 402, 


404 


406 


V. Ashley 


399, 402 


Harg V. Vaugh 




287 


V. Hall 


394 


Hargrave v. Hargrave 




225 


V. Harvey 


103, 376 


Hargrove v. Webb 




337 


V. Lane 


249 


Harkins v. Sugar Refinery 




492 


V. Norton 


64 


Harland's Accounts, In re 




375 


Harwood v. Lowell 


78 


Case 




238 


Hasheagan v. Specker 


143 


Harlow v. Humiston 




490 


Haskins v. Royster 


487 


Harmer v. Killing 




445 


Haskit V. Elliott 


155 


Harnden v. Gould 




166 


Hassard v. Rowe 


351 


Harner v. Dipple 




404 


Hastings v. DoUarhide 


406, 435 


Harney v. Owen 




443 


Haswell v. Hill 


118 


Harover v. Cornelius 




462 


Hatch i>. Gray 


187 


Harper v. Gilbert 




457 


V. Hatch 


387, 888. 


V. Lemon 




241 


Hatcher v. Cntts 


457 


V. Luffkin 




261 


Hathaway i^. Bennett 


458 


Harrall, Re 




208 


llauenstein v. Kull 


343 


Harrer v. Wallner 




96 


Hause v. Gilger 


120 



xlvi 



TABLE OF CASES. 



Section 

Hauser v. Sain 273 

Havens v. Patterson 3Go 

Hawbecker v. Ilawbecker '22(J 

Hawes v. Knowles 490 

llawkes v. llubback 105, 107 

Hawkins v. Craig 82 

V. Jones 277 

V. Providence R. 81, 82, 208 

V. Watts 238 

Hawkins' Appeal 888 

Hawkswortli v. Hawksworth 235 

Hawley v. Bradford 95 

Haws V. Clark 3U1 

Hay V. Walker 472 

Hayden v. Smith ville, &c. Co. 473, 402 

V. Stone 374 

Hayes v. Watts 30 

Hay good v. Harris 128 

V. McKoon 377 

Haymond v. Jones 173 

V. Lee 180 

Haynes' Adm'r v. Waggoner 237 

Hays V. Henry 205 

V. McConnell 273 

V. Seward 254, 2G9 

Hayward v. Ellis 374, 3SG 

Hazard, In re 303 

Hazelbaker v. Goodfellow 114, 154 

Head v. Briscoe 76 

V. Halford 186 

V. Head 225 

Headen v. Kosher 131 

Headman v. Rose 39 

Heard, Ex parte 329 

V. Daniel 348 

V. Stamford 56, 197 

Hearst v. Sybert 259 

Heath r. ]\lahoney 425 

V. West 438, 440 

Heathey v. Thomas 137 

Heathman v. Hall 124 

Hebiirn v. Warner 146 

Heck V. Clippenger 124 

Hedgeley v. Holt 473 

Hedtjes v. Tasg 201 

Heffer v. Heffer 24 

Heirn v. McCanghnn 77 

Helms V. Chadboiirne 451 

Helps V. Clayton 411 

Helyear v. Hawke 489 

Hem in en way v. Towner 225 

Hempliill v. Lewis 373 

Hemstead v. Gas Light Co. 79 

Henderson v. Coover 369 

Hendry v. Hurst 374 

Henncssy v. Stewart 252 a 

Henning v. Harrison 98 

Henry v. Henry 179 

V. Pennington 384 

V. Root 426, 434, 441, 440 

Henson v. Watts 218, 250 



Section 

Herbert v. Torball 397 

Hurdmann v. Pace 94 

Hcrndon v. Lancaster 301 

lierrick v. Fritcher 252 a 

Herring v. Goodson 303 

r. Wickham 174 

Herrington v. Robertson 198 

Herschfeldt v. George 188 

Hervey v. Mosele3' 260 

Hosketh v. Gowing 279 

Hetrick v. Hetrick 197 

Hewson, In re 208 

He3-sliam v. Heysham 238 

Heyward v. Cutlibert 239, 245 

Hey wood v. Brooks 269 

Hiatt V. Williams 270, 274 

Hickman's Appeal 388 

Hicrstand v. Kuns 893 

Higgins V. McClure 388 

High V. Snedicor 388 

Hiiihtower v. INIaull 343 

Hiibish V. Hilbish 269 

Hill I'. Anderson 407, 437 

V. Bugg 155 

11. Campbell 470 

V. Caverly 482 

V. Chambers 114, 116, 120 

V. Childress 234 

V. Crook 281 

V. Edmonds 88 

V. Eldridge 450 

V. Filkin 235 

V. Foley 82 

V. Good 16 

V. Goodrich 197 

I'. Gust 492 

V. Hill 235, 249, 290, 333 

V. Johnston 384 

V. Mclntire 383 

V. Slorey 461 

V. Saunders 89, 90 

V. Sewald 72 

V. State 58 

V. West 95 

Hillebrands v. Nibbelink 270 

Hillegass v. Hillegass 451 

Hills V. Hobert 260 

Hillsborough v. Deering 280 

Hillyer v. liennett 446 

Hincks v. Allen 178 

Hinde's Lessee v. Longworth 270 

Hindley v. Westmeath 66, 68 

Hinds, Estate of 84 

Hinely v. Margaritz 445 

nines v. JluUins 308, 343 

V. Potts 453 

V. State 329 

Hinney r. Phillips 155 

Hinton r. Hudson 69 

Ilitchins v. Eardley 225 

Hite V. Hite 344 



TABLE OF CASES. 



xlvii 





Sec-lion 




Section 


Hitner's Appeal 


217 


Hood V. Bridport 


351 


Plix V. Gosling 


143 


Hook V. Tratt 


279 


Hoare v. Harris 


343 


Hooker v. Bancroft 


370 


Hoben r. Biirlinsiton, &c. 


-R. R. Co. 492 


Hooks V. Lee 


177 


Hobensack v. Ilallman 


118 


V. I'erkins 


457 


Hobson V. Fullerton 


261 


V. Smith 


449 


Hocker v. Woods 


322, 377 


Hooper v. Eyies 


347 


Hodgden v. Hodgden 


10!) 


V. Haskell 


77 


Hodges, In re 


339 


V. Hooper 


311, 388 


V. Cobb 


154 


j;. Howell 


202 


V. Hunt 


437 


Hoover v. Heim 


259, 262 


Hodgkins v. Rockport 


235 


Hope V. Carnegie 


76 


Hodgkinson v. Fletcher 


68 


V. Hope 


216, 303 


Hodgson V. Macy 


272 


Hopkins, Ex parte 


245, 240, 250 


V. Scarlett 


476 


V. Carey 


82, 118, 119 


V. Williamson 


199 


V. Myall 


138 


Hodsoll V. Stallebrass 


486 


V. Virgin 


429 


Hodson r. Davis 


143 


Hopper v. McWhorter 


82 


Hoffman v. Gordon 


482 


Horner v. Wiieehvright 


134, 138 


Hogan V. Hogan 


191 


Hornsby v. Lee 


89 


Hoggan V. Cragie 


27 


Horsford, Re 


303 


Holmes v. Mather 


490 


Hort V. Sorrell 


125 


Hoker )'. Hoggs 


192 


Horton v. Byles 


77 


Hoit r. UndeVhill 


435. 4.37, 445 


i\ Horton 


377 


Holbrook V. Brooks 


347, 385 


V. McCoy 


357, 363 


Holcomb V. Meadville Savings Bank 


V. McJIiirtry 


462 




IIG 


Horwood V. Heffer 


66 


Holcombe v. Holcombe 


375 


Hosford, Re 


303 


Holden v. Cope 


08 


Hoskins v. Miller 


82 


V. Scanlin 


803 


V. Wilson 


348 


Holland, Ex parte 


159 


Hoste V. Pratt 


238 


V. State 


372 


Hough V. Texas R. 


492 


Holley V. Chamberlain 


306 


Houghton V. Houghton 


271 


Holliday v. Gamble 


457 


Houliston V. Smytii 


48,66 


V. McMillan 


114 


House V. House 


269 


HoUifield v. Wilkinson 


189 


Houser v. Reynolds 


439 


Hoilingsworth v. Swedenborg 252, 254, 


Houston IK Cooper 


408 




267a, 268 


Houston R. V. Miller 


262 


Hollingsworth's Appeal 


300 


Hovey v. Harmon 


303, 311, 317 


Hollis ('. Francois 


190 


Howard v. Baillie 


489 


Holloway v. Headington 


189 


V. Braithwaite 


489 


V. Millard 


186 


V. Daly 


471, 472 


Plolly V. Flournoy 


119 


V. Digby 


160 


Holn)es i\ Blogg 


408, 437, 441 


I'. Menifee 


112, 208 


V. Field 


300, 311 


?.'. Stephens 


169 


V. Holmes 26, 27, 29, 


166, 198, 222 


V. Whetstone 


66 


V. Onion 


478 


Howarth, In re 


356 


". Penney 


186 


Howd V. Miss. Central R. 


492 


V. Thorpe 


94 


Howe >\ Newmareh 


490 


Holmes's Appeal 


357 


r. Pcabody 


368 


Holt V. Brien 


64,66 


Howe's Estate 


26 


V. Holt 


407 


Howell V. Batt 


482 


V. Sindrey 


281 


V. Cobb 


377 


V. Ward 


402 


v. Maine 


83 


Holtzman v. Castloman 


238 


i\ Williamson 


349 


Holyoke v. Clark 


860 


Howells V. Bandore Steel Co. 492 


V. Haskins 


334 


Howett V. Alexander 


450 


Homer v. Thvving 


424 


Howlett V. Haswell 


424 


ITomcEopathic Life Ins. Cc 


. V. Mar- 


Howry v. Callowey 


457 


siiall 


150 


Hoxie V. Lincoln 


443 


Honnett v. Honnett 


23 


Hoyle V. Stowe 


438, 440 



xlviii 



TABLE OF CASES. 



Hoyt r. Casey 

V. Hellen 

I'. Sprague 

V. Swar 

V. White 
TToyt's Case 
Hubbard, Re 

V. Cummings 
Hubbs V. Rath 
Huchting v. Engel 
Hudson V. Heliries 

V. Hills 

V. Jones 

V. Lutz 

V. Word en 
Huey's Appeal 
Huff V. Price 

V. Walker 
Huffer's Appeal 
Huffman v. Rout 
Huger V. Huger 
Huglies V. Gallans 

V. Hughes 

V. Knowlton 

V. JMcFie 

V. RingstafF 

V. Science 

V. Seller 

V. Watson 

V. Wells 
Hughes's Appeal 
Huguenin v. Baseley 
Hull V. Sullivan 
Hulme V. Tenant 
Hultz V. Gibbs 
Hume V. Hume 
Humes v. Scruggs 
Humphery i'. Richards 
Humphrey v. Buisson 

V. Douglass 

V. Humphrey 
Humphreys ?'. Royce 
Humphries v. Harrison 
Hunsucker v. Elmore 
Hunt, Ex parte 

V. Booth 

V. De Blaquiere 

V. Johnson 

V. Massey 

V. Peake 

V. State 

V. Thompson 

V. White 

V. Winfield 
Hunt's Appeal 
Hunter v. Atkins 

V. Bryant 

V. Dash wood 

V. Duvall 

V. Lawrence 

V. Littercr 



Section 
413 
290 
329, 330, 349 
404 
162 
299 
303 
441 
87 
423 
348 
298 
405 
273 
457 
393 
72, 90 
350 
375 
457 
357 
425 
239 
281 
428 
373 
289 
451 
440 
140 
350 
389 
155 

105, 134 

66 

380 

119 

104, 132 
352 

395, 423 

373 

57 

92, 121 

457 

265 

112, 124 
61 
189 
433 
402 
367 

221, 413 

376 

78 

26 

388 

173, 176 
351 
148 
349 
473 



Section 

Hunter v. McHae 333 

Huntley v. Whitner 68, 148 

Iliintoon V. Ilazelton 260 

Hurdle V. Leath 353 

Husband v. Husband 237 

Hussee v. Roundtree 273, 337, 413 

Huston V. Cantrill 188 

V. Cone , 198 

Hutchcraft v. Shrout 867 

Hutclieson v. Peck 41 

Hutcliins c. Colby 116, 152 

V. Dresser 343 

V. Johnson 343 

V. Kimiiiell 26, 29 

Hutchinson v. Hutchinson 337 

V. York, &c. R. R. Co. 492 

Huth V. Catondolct R. 435, 437 

llutson V. Townsend 249 

Hutton V. Dney 191 

v. Harper 29 

V. Hutton 217 

V. Williams 314, 372, 374 

Huyler r. Atwood 148,150 

Huzzey r. Field 490 

Hyatt c. Adams 77, 78 

Hyde v. Hyde 21 

V. Johnson 433 

V. Stone 82, 285 

V. Warren 95 

Hylton V. Hylton 387, 388 

Hyman v. Cain 413 



I. 



Ihl r. Street R. 259 

Ihler, Goods of 204 

lUidge V. Goodwin 490 

Illinois C. R. R. Co. v. Baches 491 

Illinois, &e. R. R. Co. v. Grable 89 

Illinois Land Co. v. Bonner 225, 402, 
405, 437 
Indianapolis Chair Co. v. Wilcox 407, 
409, 442 
Ingersoll r. IngersoU 451 

Ingham v. Bicl^erdike 317 

Inglefield v. Coghlan 105 

Ingram v. Soutten 232 

Inman v. Inman 425, 439 

Insole, He 222 

Insurance Co. v. Bangs 448 

V. Nelson 193 

Irvine v. Irvine 403, 435, 439 

Irwin V. Dearman 261, 262 

V. Irwin 451 

Isaacs V. Taylor 305, 317, 321 

Ishan V. Gibbons 230 

Ivey !'. Ingram 452 

Izard V. Izard 175 

Izod V. Lamb 104, 111 



TABLE OF CASES. 



xlix 



J. 






Section 




Section 


Jeston V. Key 


182 


Jackson v. Bridge 


473 


Jewell V. Grand Trunk R 


492 


V. B urchin 


439, 440 


r. Jewell 


28 


V. Carpenter 


440 


Jevvett, Ex parte 


356 


V. Combs 


255 


Jewsbury ?•. Newbold 


63, 64, 71 


V. De Walts 


290 


Jodrc'll V. Jodrell 


110, 160 


V. Gilchrist 


04 


Joel V. Morrison 


490 


V. Hankey 


334 


Jolin V. Bradbury 


325 


V. Ilobliouse 


110 


Johnes v. Lockhart 


105 


V. Hubbard 


113 


Joliiis V. Emmert 


278, 332 


V. Innes 


209 


V. Emmett 


282 


V. Jackson 155 


221, 272, 351 


V. Johns 


23 


V. Kirby 


75 


Johnson v. Avery 


362 


V. McAliley 


112, 123 


V. Ballard 


265 


V. McConnell 


88 


V. Barber 


482 


V. Peek 


270 


V. Blenkensopp 


• 458 


V. Sears 


342 


V. Bruner 


492 


V. Suffern 


89 


V. Burford 


7 


V. Todd 


439 


V. Carter 


350 


V. Town 


187 


V. Chandler 


377 


V. Vanderheyden 


58,95 


V. Dodd 


457 


V. Winne 


2:5,26 


V. Gallagher 134, 


135, 143, 158, 


Jacobs V. Amyatt 


105 




163, 165 


V. Hesler 


155 


I'. Gibson 


267 a. 268 


Jaeox V. Jacox 


270, 326 


V. Johnson 37, 108 


118, 324, 388 


Jacquot V. Bourra 


462 


V. Kirkwood 


219 


Jaffray v. Fretain 


402 


r. Lines 


413 


James v. Taylor 


164 


V. Lusk 


193 


Jamison v. Cosby 


367, 377 


V. McCullough 


367 


Janes v. Clegliorn 


305 


V. Payne 


89 


Jaques v. Methodist E 


[)iscopal 


V. Pye 


424, 425 


Church 132, 


136, 138, 139 


V. Rockwell 


402 


V. Sax 


408 


V. Runyan 


120, 152 


Jarman v. Lucas 


451 


V. Silsbee 


268 


V. Wooloton 


163 


V. Snow 


155 


Jarrett v. State 


298, 306, 376 


V. State 


•244, 398 


Jassoy V. Delius 


162, 165 


V. Stone 


266 


JefFord v. Ringgold 


402 


V. Terry 


251 


Jeffrey v. Guy 


90 


V. Vail 


154 


Jeffreys v. Vanteswartswc 


rth 334 


Johnson's Appeal 


232 


Jenison v. Graves 


267 a, 270 


Johnston i'. Coleman 


338 


Jenkins v. Flinn 


118, 165, 168 


V. Furnier 


439 


V. Jenkins 


403 


I'. Gill 


188 


V. Kemis 


174 


V. Johnston 


84, 190 


V. Mitchell 


272 


V. Jones 


94 


V. Tucker 


199 


V. Sumner 63, 


64, 65, 66, 69 


V. Walter 


352 


Johnston's Case 


322 


Jenks V Langdon 


213 


Johnstone v. Beattie 


299 


Jenkyn v. Vaughan 


186 


V. Lumb 


107 


Jenne v. Marble 


191 


Jollifle V. Higgins 


343 


Jenner v. Turner 


32 


Jolly V. Rees 


63 


Jenness v. Emerson 


237,252 a 


Jones, Ex parte 


53 


V. Robinson 


203 


Re 


186, 190, 278 


Jenney v. Gray 


89 


V. Mtna, Ins. Co. 


112 


Jennings v. Davis 


189 


V. Beverly 


382, 386 


V. Kee 


348 


V. Billstein 


363 


V. Looks 


347 


V. Blanton 


367 


V. Lyons 


458, 474 


V. Brewer 


344, 350, 418 


V. Rundall 


424 


I'. Buckley 


252 


Jervois v. Silk 


238 


V. Butler 


399, 437 


Jervoise v. Jervoise 


208 


V. Carter 


90 



TABLE OF CASES. 







Section 




Section 


Jones V. Cleghorn 






232 


Keith V. Miles 


374 


I'. Clifton 




187 


, lUU 


Kekewicli c. Manning 


189 


V. Crosthwaite 






143 


Kelchner ( . Forney 


388 


V. Fellows 






372 


Keller v. Mayer 


154 


V. Foxall 






3-34 


r. Phillips 


63, 65 


V. Hart 






490 


Kelley v. Case 


190 


i^. HoUopeter 






350 


V. Davis 


241 


V. Jones 7, 32, 352, 


407 


, 433, 452 


Kellogg r. Adams 


269 


r. Littledale 






4»1 


V. Robinson 


72 


V. Patterson 






89 


Kelly V. Drew 


119, 162 


V. Perry 






330 


V. Kelly 


45,46 


V. Phoenix Bank 




435 


439 


V. Owen 


89 


V. Plummer 






92 


V. Small 


53 


V. Reid 






162 


Kemble v. Kean 


460 


V. Sharp 






448 


Kemp V. Cook 


407, 426 


I'. Steele 






449 


V. Downliam 


68 


V. Stockett 




235 


238 


Kempe v. Pintard 


92 


V. Tevis 






200 


Kenipson v. Ashall 


404 


V. Waite 






21tJ 


Kenan v. Hall 


354 


V. Ward 






313 


Kendal! v. Lawrence 


405 


Jones's Appeal 




174 


322 


j: Miller 


347 


Jordan v. Clark 






221 


Kendrick v. Wilkinson 


367 


V. Donahue 






343 


Kennaird r. Adams 


348 


V. Foxworth 






472 


Kcnnard r. Burton 


202 


V. Jones 






93 


Kennedy r. Doyle 


407 


?". Norton 






489 


V. Gaines 


361 


Joyce V. McAvoy 






217 


V. Shea 


261 


Judge of Probate v. Cook 






377 


r. Ten Broeck 


94 


i;. Hinds 






303 


Kenney v. Good 


120 


Judson V. Blanchard 






450 


Kenningham v. M'Laughlin 


255 


V. Storer 






451 


Kennison's Trusts, In re 


238 


Junction Railroad Co. v. Han- 


s 


89 


Kcnniston r. Leighton 


361 


Justices V. Willis 






376 


Kenny v. Udall 
Kenrick v. Wood 
Kensington v. Dollond 


390 
110 
105 


K. 








Kent r. Dunham 
V. State 


272 
30 


Kane, Matter of 






238 


Kenton Ins. Co. v McClellan 


148 


Kantrowitz v. Pratlier 






143 


Ken worthy v. Sawyer 


146 


Karney v. Vale 






338 


Kenyon v. Farris 


61 


Karr v. Karr 




324, 


353 


Keogh v. Cathcart 


134 


7\ Parks 






258 


Kernodle v. Caldwell 


241 


Kauffelt I'. Moderwell 




2 


52 « 


Kerr v. Bell 


446 


Kaufman v. Whitney 






188 


V. Forgiie 


429 


Kavanaugh r. Janesville 




77.78 


Kerwin v. IVIyers 


457 


Kay V. Crook 




178, 


180 


r. Wright 


267 rt 


V. Whittaker 






91 


Kesner v. Trigg 


190 


Kaye, In re 






306 


Kessee v. May field 


473 


V. Crawford 






270 


Kettletas r. Gardner 306 


316. 339 


Kaye's Case 




301, 


305 


Kevan ?'. Crawford 


174 


Keane v. Boj'cott 


260, 


401, 


402 


r. Waller 


299, 322 


Kearney v. Denn 






225 


Keyes r. Keyes 


23 


Keating v. Condon 






210 


Keys V. Keys 


218 


Keaton v. Davis 






241 


Kibbie v. Williams 


89 


Kebble, Ex parte 






240 


Kidd V. Guibar 


372 


Kee V. Vasser 






125 


V. Montague 


114 


Keech v. Keech 






38 


Kidwell V. Kirkpatrick 


119 


Keeler v. Fassett 






255 


V. State 


313 


Keene v. Guier 






318 


Kilcrease v. Shelby 


418 


Kehri'. Smith 






188 


Kilgore r. Jordan 


426 


Keister v. Howe 






80 


Kiliick, Ex parte 


105 



TABLE OF CASES. 







Section 


Kimball v. Fisk 


808, 


311,3(51 


V. Keyes 


68 


G9, 237 


V. Terkins 




353 


Kimmel v. Kimmel 




31« 


Kine v. Barbour 




408 


King V. Bell 


303, 


308, 324 


V. Fox well 




37 


V. Gottschalk 




118 


V. Hodnett 




278 


V. Hughes 




315, 372 


V. Little 




8'J 


V. Luffe 




22.-) 


V. Kea 




150 


V. Rotherfield Greys 




419 


V. Seals 




345 


V. Tiiompson 




77, 1(J1 


Kingman v. Perkins 




40(i 


Kinkead, Re 




109 


Kinnard v. Daniel 




177, 180 


Kinnen v. Maxwell 




408, 446 


Kinney v. Showdy 




402 


Kinnier v. Kinnier 




22 


Kinsey v. State 




377 


Kintzinger's Estate 




221 


Kir by v. Kirby 




388 


V. Taylor 




388 


V Turner 




322 


Kirk V. Paulin 




105 


Kirkman, Ex parte 




3G3 


Kirkpatrick v. Lockhart 




2G0 


Kirksey v. Friend 




114 


Kirwin v. Weippert 




136 


Kitchell V. Mudgett 




58 


Kitclien v. Bedford 




189 


V. Lee 


408, 409, 446 


Kittredge v. Betton 




388 


Klaus i\ State 




450 


Kleffel V. Bullock 




450 


Klein v. Jewett 




78 


Kieinert v. Ehlers 




225 


Kline v. Beall 




446 


V. Beebe 




285, 437 


r. Central Pacific R. 


R. Co. 428 


V. Kline 




181 


^ V. L'Amoreux 




413 


Kline's Estate 




181 


Klingman ik Holmes 




262 


Klopt'er V. Bromme 




262 


Knaggs V. Green 




446 


Knapp V. Crosby 




451 


V. Smith 


120 


148, 153 


Knickerbocker v. Knickerbocker 361 


Knight V. Knight 




44, 108 


V. Thayer 




150 


V. Wilcox 




261 


Knothe v. Kaiser 




350 


Knott V. Cottee 


305 


333, 354 


Knotts V. Stearns 




448 


Knowles v. Hull 




168 


V. Knowles 




136, 138 


Knowlton v. Bradley 


352 


353, 375 



Section 

Knox V. Bushell 61 

V. Flack 406 

V. Jordan 143 

t'. Picket 128 

Knye v. Moore 279, 281 

Kolm V. Russell 145 

KoUs V. De Lever 150 

Koitenback v. Cracraft 133 

Konigmacher's Appeal 353 

Koontz V. Nabb 143 

Kopke V. People 21 
Kouskop V. Sliontz 166, 167, 168 

Kraft r. Wickey 328, 329 

Kraker v. Byruin 337, 413 

Kreig v. Wells 429 

Kreis v. Wells 259 

Kriger v. Day 222 

Kuclienbeiser v. Beckert 452 

Kulm V. Stansfield 155 

Kurtz r. Ilibner 269, 270 

Kyle V. Barnett 354, 386 



L. 

Lacey, Ex parte -348 

Lacy V. Osbaldiston 462 

V. Williams S03 

Ladd V. Hildebrandt 94 

V. Lynn 61 

Lady Chester's Case 299 

Lady Teynham v. Lennard 305 

Lady Teynham's Case 235 

Lahr's Appeal 188 

Laing v. Cuimingham 162 

Lake i\ Lake 7 

Lamb V. Lady Palk 491 

V. Milnes 109 

Lamb's Appeal 354 

Lambe v. Fames 281 

Laniburn (;. Cruden 473 

Lammoth r. Maulsby 457 

Lamphier v. State 51 

Lampliir v. Creed 82, 83 

Lampnian v. Hammond 261 

Lancaster, In re 219 

Lane v. Cotton 482 

V. Hardwicke 452 

r. Ironmonger 63, 64 

V. McKeen 94 

V. Phillips 473 

V. 'raylor 348, 351 

Lang V. Pettus 304 

Lange v. Werk 460 

Langford v. Frey 404 

Langham v. Nenny 83 

f. State 260 

Lanier v. GrifHn 388 

Lannoy v. Ducliess of Athol 51, 239 

V. Duke of Athol 184 

Lansier v. Ross 125 



lii 



TABLE OF CASES. 



Section 

Lantz V. Frey 273 

Lapsley v. Grierson 227, 228 

Larimer v. Kelley 162 

Larkin v. Mann 451 

Lashbrook v. Patten 203 

Lassenee v. Tierney 175 

Latouche v. Latouche 134 

Laugher v. Pointer 490 

Laughlin v. Eaton 77 

Lavender v. Blackstone 188 

Lavie v. Phillips 163 

Law V. Wilkin 241 

Lawes v. Lumpkin 88 

Lawford v. Davies 30 

Lawrence v. Kidder 460 

V. Lawrence 46 

V. M'Arter 406 

Lawson v. Lovejoy 435 

V. Perry 473 

V. Shotwell 221 

Lawson's Appeal 272 

Leach v. Duvall 181 

V. Noyes 94 

V. Prebster 210 

V. Rogers 475 

Leadbitter v. Farrow 481 

Leavel v. Bettis 305, 318 

Leavitt v. Leavitt 23, 24, 187 

Leaycraft v. Hedden 136 

Lebanon v. Griffin 265 

Lecone v. Sheires 287 

Ledlie v. Vrooman 143 

Lee V. Brown 389 

V. Carter 473 

V. Hodges 201 

p. Ice 308, 317 

V. Lanahan 58, 114 

V. Lee 353 

V. West 487 

Lee's Appeal 301 

Lees V. Whitcomb 477 

Lefever v. Lefever 316, 319 

Lefevre v. Lara way 348 

Lefevres v. Murdock 222 

Lefils V. Sugg 411 

Legard v. Johnson 216 

Legeyt v. O'Brien 18 

Legg V. Goldwire 1H2 

V. Legg 82, 221 

Lehigh Valley Co. r. Jones 492 

Lehman v. Brooklyn 429 

Leidig v. Coover's Ex'rs 269 

Leigh V. BjTon 281 

Leitensdorfer v. Hempstead 440 

Leland v. Collver 168 

V. Whitaker 120 

Le Loir v. Bristow 473 

Lemley v. Atwood 384 

Lemon r. Hansbarger 382 

Lempricre v. Lange 425 

Lenderman v. Talley 83 





Section 


Lennox v. Eldred 


59 


Leonard v. Barnum 


348 


V. Leonard 


308 


V. Putnam 


329 


Leslie v. Fitzpatrick 


403 


Lethem ». Hall 


306, 334 


Letts V. Brooks 


252 


Levering v. Heighe 


186 


V. Levering 


399 


Levett V. Penrise 


64 


Lewis V. Allred 


373, 388 


V. Ames 


26 


V. Babcock 


77 


V. Edwards 


337 


V. Eutsler 


277 


V. Harris 


138, 145, 155 


V. Johns 


154 


V. Littlefield 


424 


V. Mathews 


105 


V. Peachey 


457 


V. Sawyer 


482 


Lewson v. Copeland 


352 


Libby v. Chase 


150 


Libhart v. Wood 


462 


Lichtenbergcr v. Graham 


120, 155 


Liddlow V. Wilmot 


66,68 


Lightly V. Clouston 


487 


Lights' Appeal 


354 


Lilley v. Elwin 


458, 462, 472 


Lincoln v. Alexander 


321, 330 


Lind V. SuUestadt 254, 267 a. 268 


Lindley v. Smith 


94 


Lindo V. Belisario 


13 


Lindsay v. Lindsay 


388 


Lindsell v. Thacker 


105 


Line v. Blizzard 


155 


Lingen v. Lingen 


226, 231 


Linker v. Linker 


190 


Linner v. Crouse 


450 


Linton v. Walker 


382 


Lipe V. Eisenlerd 


269 


Lippincott v. Mitchell 


117, 152 


Lishey v. Lishey 


155 


Litchfield v. Cad worth 


89 


Little V. Duncan 


404, 435 


Little Miami R. R. Co. v. 


Stevens 492 


V. Wetmore 


491 


Ljvermore i-. Bemis 


367 


Liverpool Adelphi Loan 


Associa- 



tion I'. Fairhurst 76 

Livesey v. Harding 339 

Livingston, In re 412, 453 

V. Livingston 175, 190 

Llovd, In re 278 

' V. Fulton 179, 188 

V. Pughe 86 

Locke V. Smith 413 

Lockhart v. Phillips 384 

Lockwood V. Fenton 304 

V. Thomas 68 

Lockyer v. Sinclair 26 



TABLE OF CASES. 



Hii 



Section 

Loftris's Case 88 

Logan V. Fairlee 306 

V. Goodall 176 

V. Hall 155 

V. Thrift 95 

V. Wienholt 177 

Lomax v. Smyth 152 

London Bank of Australia v. Lem- 

priere 135 
London & Northwestern 11. R. Co. 

V. M'Michael 407 

Londonderry v. Chester 29 

Long V. Hewitt 232 

V. Kinney 73 

V. Morrison 77, 78 

V. Norcora 338 

Longley v. Hall 375 

Longraeid v. Holliday 77 

Longmire v. Pilkington 343 

Longstreet v. Tilton 343 

Loomis V. Cline 431 

V. Newhall 237, 241 

Lord V. Hough 305, 333 

V. Parker 169 

V. Poor 268 

Loring v. Alline 377 

V. Bacon 367 

Loud V. Loud 217 

Louisville & Nashville R. R. Co. v. 

Collins 492 

Love V. Graham 183 

V. Logan 352 

V. Watkins 150 

Lovelace v. Smith 351 

Lovell V. Minot 353 

V. Newton 162, 166 

Lover v. Lover 86 

Lovett V. Salem, &c. R. R. Co. 429 

Low V. Purdy 347 

Lowe V. Griffith 412 

i;. Sinklear 443 

Lowell V. Boston & Lowell R. R. 

Co. 491 

Lower Augusta v. Salinsgrove 278 

Lowndes v. Lowndes 281 

Lowry v. Button 251 

V. Drake 446 

V. State 354, 367 

Loyd V. Malone 361, 385 

Lucas V. Brooks 53 

V. Rickerich 89 

Lufkin V. Mayall 443 

Luhrs V. Eimer 39 

Lumb V. Milnes 135 
Lumley v. Gye 260, 252, 487 

Lunay v. Vantyne 232 

Lunday v. Thomas 343 

Lushington v. Sewell 107 

Lygo V. Newbold 429 

Lyn V. Ashton 137 

Lynch v. Kirby 361 



Section 



Lynch v. Lynch 


36 


V. Nurdin 


A-'.'d 


V. Rotan 


372, 377 


Lynde v. Budd 


438, 441 


V. McGregor 


202 


Lyndon v. Lyndon 


23,24 


Lyne, Succession of 


392 


Lyon V. Boiling 


267 a, 268 


r. George 


458 


V. Green Bay R. 


118, 155 


V. Vanatta 


361 


Lyons v. Blenkin 


246 


V. Martin 


491 


Lytle's Appeal 


145 



M. 



Maccord v. Osborne 433 

Mack V. Branuuer 351, 352 

V. State 204 

MacKay v. Commercial Bank 490 

Mackin v. Morse 354 

Mackinley v. McGregor 72, 164 

Maclay v. Love 114, 143 

Maclin v. Smith 338 

Macready v. Wilcox 290, 333 

MacVey v. McVey 363 

Maddox v. State 457 

Madison County v. Johnston 369 

Madox V. Nowlan 178 

Magee v. Holland 252 a 

V. Magee 262 

Magniac v. Thompson 173, 188 

Magruder v. Darnall 59, 326, 375 

V. Goodwyn 382, 388 

V. Peter 350 

Maguinay v. Saudek 261 

Maguire v. Maguire 13, 143 

Mahoney v. McGee 361 

Maitland v. Backhouse 389 

Major V. Holmes 146 

V. Lansley 133 

V. Svmmes 143, 150 

Male V. Roberts 393 

Mallan v. May 460 

Mallinson v. Mallinson 249, 250 

Mallory v. Vanderlieyden 67 

Maltby v. Harwood 457, 473 

Manby v. Scott 48, 63, 66, 424 

Manchester v. Smith 268 

Mangam v. Brooklyn R. R. Co. 429 

Mangan v. Atterton 428 

Manley v. Field 261 

Manly v. Downing 143 

Mann v. McDonald 348 

V. State 63 

Manning v. Baker 372, 374 

V. Chambers 186 

V. Johnson 446 

V. Manning 372, 382 



llY 


TABLE or CASES. 






Section 




Section 


Manson v. Felton 




321 


Mathews v. Sheldon 


155 


Manvell u. Tliomson 




2til 


V. Wade 


308 


Manwaring v. Sands 




66 


Matlock V. Rice 


372 


Maples V. Maples 




451 


Mattiiewman's Case 


135 


V. Wiglitman 




404 


Mattliews v. Brise 


352 


Marcelliti, Matter of 




305 


V. Copeland 


89, 114 


March v. Bennett 




347 


V. Fiestel 


75 


V. Berrier 




357 


Matthewson r. Perry 


254 


Marchioness of Annandale 


V. Har 




Mattingly v. Nye 


187 


ris 




270 


Mattocks V. Stearns 


89 


Margetts v. Barringer 




105 


Mattoon v. Cowing 367 


369, 373 


Marheineke v. Grothaus 




334 


Maudslay v. Maudslay 


221 


Markey v. Brewster 




274 


MauU r. Vaughn 


210 


Marklay v. Wartuian 




67 


Maunsell v. White 


178 


Marlett y. Wilson 




279 


Mawson v. Blane 


433 


Marlow v. Pitfield 




414 


Maxson v. Sawyer 


311 


Marr'& Appeal 




388 


Maxwell, Ex parte 


306 


Marrick v. Grice 




138 


V. Campbell 


303, 364 


Marsh, Ex parte 




173 


May r. Duke 


348, 386 


V. Alford 




151 


V. May 374 


375, 376 


V. Blackman 




265 


Maybin, Re 


367 


V. Loader 




395 


Mayer i'. McLure 


445 


V. Marsh 


53 


120 


Mayfield v. Clifton 


84 


w. Rulesson 




473 


Mayliew v. Baker 


164 


Marshall v. Crutwell 




190 


V. Thayer 


61,66 


V. Marshall 




218 


Mayne v. Baldwin 


251 


V. Oakes 




75 


Mayo V. Hutchinson 


143 


V. Rutton 


58,67 


Mazouck V. Northern Iowa R. R. Co. 155 


V. Stewart 




492 


JNlcAdam v. Walker 


18 


V. Wing 




451 


McAfee v. Kentucky Universi 


ty 38 


Marston v. Brittenhaiia 


150 


, 155 


V. Robertson 


7,72 


Martin, Ex parte 




334 


McAlister v. Oimstead 


319 


V. Curd 




120 


McAllister v. McAllister 


218 


V. Foster 


196 


318 


McAndrews v. Burns 


492 


V. Gale 




414 


McBride v. McBride 


249 


V. Mayo 




435 


McBurnie, Ex parte 


174 


0. McDonald 




329 


McCahan's Appeal 


348 


i;. Payne 




261 


McCaleb v. Crichfield 


85 


V, Stevens 




349 


McCall v. Flippin 


347, 349 


V. Wey man 




449 


McCampbell v. McCampbell 


191, 192 


Marts V. Brown 




329 


M'Cartee v. Teller 


399 


Marvin v. Schilling 


347 


361 


McCarthy v. Guild 


262 


Mary Clark's Case 




460 


V. Hinman 


239 


Mason v. Bowles 




168 


McCarty v. Carter 


440 


V. Buclianaii 




352 


V. Murray 


406 


V. Dunbar 




162 


McChesney v. Brown 


133, 136 


V. Fuller 




115 


M'Clallan v. Adams 


61 


D. Hutchins 


252 a 


M'Ciellan, Ex parte 


245 


V. Mason 




381 


V. Kennedy 


388 


V. Morgan 




68 


McClelland v. IVIcClelland 


362 


V. The Blaireau 




488 


McClendon v. Harlan 


367 


V. Wait 




361 


MeClintic r. Ochiltree 


138 


V. Wright 


408 


443 


M'Closky V. Cyphert 267 a, 268 


Massey v. Massey 




352 


McClure v. Commonwealth 


303, 326 


V. Parker 




105 


V. Evans 


272 


V. Taylor 




473 


McClurg V. Terry 


23,26 


Massie v. Sebastian 




95 


McClurg's Appeal 


36 


Massingale v. Tate 




305 


McCluskey v. Provident Institution 162 


Master v. Fuller 




134 


McConnell v. Martin 


Ibb 


Matherson v. Davis 




447 


McCoon V. Smith 


423 


Mathews v. Cowan 




424 


McCormick v. Demary 


462 



TABLE OF CASES. 



Iv 





Section 




Section 


McCormick v. Ketchum 




473 


McKinnon v. McDonald 




164 


V. McCormick 




36 


McKnight v. Walsh 




240 


V. renn. Central R. 




208 


McLaurie v. Partiow 




255 


McCormie v. Lcggett 


409 


439 


McLean, Succession of 




7 


McCowan v. Donaldson 




111) 


V. Longlands 




161 


M'Coy V. Huffman 




443 


M'Liskey v. Reid 




329 


McCrary v. Lowell 




250 


McMahon v. Davidson 




492 


M'Crillis v. How 




414 


V. Lewis 




64 


McCrocklin v. McCrockliu 




218 


Mcl\lannis v. Rice 




861 


McCrosky i-. Parks 




452 


RlcManus v. Crickett 




263 


McCubbin v. Patterson 




217 


McMillen v. Lee 




241 


McCue V. Garvey 




199 


M'Minn v. Richmond 


404 


414 


M'CulIochs, In re 




317 


McMullcn V. McMullen 




190 


MeCullough I'. Wilson 




94 


McMurray v. jMciMurray 




451 


McCutchen v. McGaliay 


63, GG 


M'Nair v. Hunt 




348 


McDaniel v. Edwai'd 




261 


McNeely '•. Jamison 




329 


V. Mann 




337 


McNigiit V. Hogg 




457 


V. Whitman 




82 


McPeck V. Moore 




457 


McDavid v. Adams 




81 


McPherson v. Commonwealth 


17 


McDonald, In re 




419 


McPhillips I'. McPhiUips 




316 


V. Boeing 


461 


472 


McQueen v. Fulgham 




75 


V. Crockett 




124 


Mead v. Hughes 




219 


V. Meadows 




367 


Meader v. Page 




72 


V. Montague 




443 


Meals V. Meals 




85 


V. Snelling 




490 


Means v. Robinson 




391 


McDonnell r. Harding 




352 


Meara v. Holbrodk 




461 


McDow V. Brown 




388 


Mears v. Bickford 


252 a 


McDowell V. Caldwell 




338 


Mebane v. Mebane 




343 


V. Georgia R. 


259 


262 


Medbury i\ Watrous 




443 


M'Dowles's Case 




419 


Med worth v. Pope 




281 


McDuff V. Beauchamp 




193 


Meek v. Kettlewell 




189 


McDuffie V. Mclntyre 


348 


352 


V. Perry 




388 


McElfresli v. Kirkendall 




75 


Meeker v. Hurd 


443, 473 


478 


McElhenny's Appeal 


374 


375 


V. Wright 




193 


McElhcny v. Musick 




348 


Meese v. Fond du Lac 




77 


McElroy's Case 




18 


Mcister v. Moore 




29 


McFaddin v. Grumpier 




143 


Mclbourn, Ex parte 




7 


McFaddyn v. Jenkyns 




189 


Mellish V. Mellish 


326 


389 


McFarland v. Conlee 




384 


JMendes v. Mendes 


299, 311 


313 


McFarlane v. Randle 




373 


Menifee v. Hamilton 




358 


McGan v. Marshall 


401, 


440 


Menk r. Steinfort 




53 


M'George v. Egan 




63 


Menvill's Case 




89 


M'Giffin V. Stout 




449 


Mercein v. People 


216, 248 


251 


M'Gill V. Woodward 




437 


Mercer v. Jackson 




259 


McGloshlin v. Wyatt 




367 


V. Whall 




463 


McGuire i'. Grant 




461 


Merchants' Bank i: Scott 




143 


McGunigal v. Mong 


278 


457 


Merchants' Fire Ins. Co. 


•. Grant 


438 


McHenry v. Davies 




67 


Meredith v. Crawford 




473 


Mclnnes v. More 




27 


Meriwetlier v. Smith 




162 


Mclntyre v. Knowlton 




154 


Merrells i\ Phelps 




367 


McKanna v. Merry 


337 


413 


Merriam v. Boston R. 




149 


McKavlin v. Bresslin 




162 


V. Cunningham 411, 


412, 413 


425 


McKay v. Allen 




127 


V. Harsen 




192 


McKee v. lleynolds 




217 


V. Wilkitis 




437 


McKeever v. Ball 




361 


Merrick v. Plnmley 




154 


McKennan v. Phillips 112 


123 


218 


Merrill v. Bullock 




124 


M'Kenzie v. McLeod 




491 


V. Smith 




162 


McKeown v. Johnson 




75 


Merritt v. Fleming 




279 


McKinney v. Clark 




24 


r. Lyon 


116 


124 


V. Hamilton 




152 


V. Simpson 




351 


r. Noble 




290 


V. Williams 




431 



Ivi 



TABLE OF CASES. 



Merriweather v. Brooker 
Merry v. Nick.alls 
Messenger v. Clarke 
Messervey v. Barelli 
Metcalf I'. Lowther 
Metcalfe t'. Alter 



Section 
87 
407 
104, 132 
384 
32i) 
343 



Meth. Ep. Church v. Jaques 112, 13tj, 

139 

Metier v. Metier 53 

Metropolitan Bank v. Durant 188 

V. Taylor 143 

Mewhirter v. Hatten 77 

Mews V. Mews 161 

Meyer v. Haworth 51) 

Meyers v. Rahte 107 

Michael v. Alestree 490 

!•. Morey 174 

Mickelberry v. Harvey 70, 72 

Mitldlebury College v. Chandler 412 

Middleton v. Hoge 441 

Midland R. R. Co. v. Pye 219 

Miles V. Boyden 255, 449, 450, 451 

V. Chilton 21 

V. Lingernian 446, 447 

V. Williams 88 

Milford V. Milford 239 

V. Worcester 29 

Millard v. Hewlett 407 

Miller v. Albertson 133 

V. Aris 482 

V. Blackburn 82 

V. Brown 143 

V. Carnall 377 

, V. Cuddy 475 

V. Delamater 72 

17. Edwards 155 

V. Harris 299 

V. Hine 150 

V. Miller 230, 231, 268, 277 

V. Newton 143 

V. Shackleford 90, 91 

V. Simonds 270 

V. Sims 408 

V. Smith 407 

V. State 50, 53 

V. Stewart 277 

V. Williams 87 

V. Williamson 160 

Miller's Appeal 272 

Miller's Estate 351 

Mills V. Dennis 452 

V. Graham 424 

V. Humes 449 

r;. Wyman 237,241,265 

Milner v. Lord Harewood 341, 399 

V. Milnes 77 

Miner v. Miner 248 

Minfee v. Ball 326 

Minock v. Shortridge 408 

Minor v. Betts 365 

Mitchel V. Reynolds 460 





Section 


Mitchell V. Berry 


451 


V. Jones 


861 


V. McElvin 


457 


V. Mitchell 


115, 457 


V. Otey 


122 


V. Sawyer 


166 


V. Seitz 


162 


V. Treanor 


64,69 


V. Union, &c. Ins. Co. 


253 


V. Williams 


382 


Mitford V. Mitford 


87 


Mix V. Andes Ins. Co. 


188 


Mizen v. Pick 


60,68 


Mockey v. Grey 


449 


Modawell i". Holmes 


317 


Moffatt V. Moffktt 


38 


Mohney v. Evans 


412, 413 


Mohr V. Mahierre 


361 


V. Tulip 


361 


Mohry v. Hoffman 


261 


Molony v. Kennedy 


106, 107 



Monaghan v. School District '252, 267 a 
Moncrief ?'. Ely 279 

Monell V. Burns 474 

V. Monell 382 

V. Scherrick 270 

Monnin v. Beroujon 888 

Monroe v. Twistlelon 53 

Monson v. Williams 65 

Montague r. Benedict 61, 63, 64, 69 
Montford (Lord) v. Cadogan (Lord) 

140 
Montgomery v. Chaney 272 

V. Henderson 177, 180 

V. Montgomery 23, 227 a 

V. Smith 301, 317 

V. Sprankle 169 

V. Tate 89 

V. Tilley 186 

Montgomery Bank v. Albany Bank 

482 
Monumental, &c. Association v. Her- 
man 404, 409 
Moody ;;. Matthews 87 
Moon V. Towers 268 
Moore v. Abernethy 439, 440 
V. Baker 377 
V. Christian 260 
V. Cornell 94 
r. Graves 894 
V. Harris 107 
V. Hazelton 388 
V. Hood 377 
V. Jones 124 
V. Leseur 57 
V. Metropolitan R. R. Co. 490 
V. Moore 84, 397, 398 
V. Morris 105, 131 
V. Ricliardson 89 
V. Robinson 219 
V. Sanborne 491 



TABLE OF CASES. 



Ivii 



Moore v. Shields 

V. Stephenson 

V. Tickle 

?;. Wallis 

V. Webster 

t;. Whittaker 
Moorehead v. Orr 
Moorcs I'. Moores 
Moorhouse v, Colvin 

V. Myall 
Moreau v. Branson 
Morehouse v. Cooke 
Moreland v. Davidson 
Morgan v. Anderson 

V. BoUes 

V. Dillon 

V. Hannas 

V. Hughes 

V. Johnson 

V. Morgan 

V. Perhamus 

V. Perry 

V. Shelton 

V. Smith 

V. Thames Bank 

V. Thorne 
Moritz V. Garnhart 
Morrell, In re 

V. Dickey 

V. Morrell 
Morrill v. Aden 
Morris v. Davies 

V. Garrison 

V. Harris 

V. Low 

V. Martin 

r. Morris 

I'. Palmer 

V. Stephenson 

V. Swaney 
Morrison v. Dobson 

V. Kinstra 

V. Thistle 
Morrison's Case 
Morrow r. Whitesides 
Morse v. Royal 

V. Welton 

V. Wheeler 
Mortara v. Hall 
Mortimer v. Mortimer 
Mortimore v. Wriglit 
Morton v. Rainey 

V. Sims 
Moseby v. Partee 
Moseley v. Rendell 
Moses V. Eorgartie 

V. Stevens 
Moss V. Pacific R. R. Co. 
Mosteller's Appeal 
Motes V. Madden 
Motley V. Head 



Section 
374 

2iy 

489 
367 
107 

31 
373 

3G 

177, 179 

116, 120 

145 

305, 316 

472 

316 

162 

316, 318 

374 

63 
385 
371, 375 
167 
226 
464 
260, 487 

82 

450 

280 

365 

328, 329 

19 

424, 425, 446 

225 

343 

300 

254, 267 n 

66 
23, 360 

61 

93 
225 

27 

364, 386 

192 

329 

56 
386 
268 
445 
413 
216 
241 
274 
307 

94 
210 

64 
443 
492 
269 
377 
880 



Section 



Motley V. Motley 




389 


Mott,"/?e 




354 


V. Consumers' Ice Co 




491 


Motteaux v. St. Aubin 




402 


Moulton V. Haley 




155 


Mount V. Kesterson 




94 


Mountain v. Fisher 




443 


Mountfort, Ex parte 




246 


Mowbray v. Mowbray 




239 


Mowbry c. Mowbry 




273 


Moye V. Waters 




119 


Moyer's Appeal 




155 


Mud way v. Croft 




18 


Mulford V. Beveridge 




361 


Mulhallen v. Maruin 




388 


Mulhern v. McDavitt 




374 


Muller V. Benner 


321, 343 


350 


Mulvey v. State 




50 


Mumford v. Gething 




460 


Mundy v. Earl Howe 




238 


Munger v. Hess 




424 


Munn V. Reed 




429 


Munro v. Munro 




226 


V. Saunders 




231 


Munroe v. De Chemant 




71 


V. Phillips 




326 


Munson v. Munson 




303 


V. Washband 




412 


Murdock v. Murdock 




273 


Murpliree v. Singleton 




86 


Murphy v. Green 




390 


I.'. Johnson 




409 


V. Ottenheimer 




241 


Murray v. Barlee 




134 


V. Currie 




492 


V. Mann 


477, 


489 


Musgrave v. Conover 




361 


Musser v. Gardner 




53 


V. Oliver 


382 


388 


V. Stewart 




279 


Musson V. Trigg 


124, 


136 


Mustard v. Wohlford 


404, 


442 


Myer v. Rives 




388 


Myers v. King 


188, 


191 


V. Myers 




2.S8 


V. PearsoU 




317 


V. Wade 


338 


339 



N. 



Nace V. Boyer 


24 


Naden, Ex parte 


16 


Nairn v. Prouse 


173 


Nalle V. Lively 


188 


Nance v. Nance 


353, 372 


Napier ?\ Effingham 


398 


Nash (' Mitchell 


143, 153, 167 


V. Nash 


83 


V. Spofford 


95 



Iviii 



TABLE OP CASES. 



Section 

Nashville, &c. R. R. Co. v. Elliott 443 

National Bunk v. Sprague 108 

Nations v. Cudd 472 

Naylor v. Fall River Co. 4G4 

V. Winch 38G 

Neal V. Gillett 423 

V. Gilmore 273, 473 

Neal's (Paul) Case 161 

Nedby v. Nedby 190 

Needham v. Bremner 6(3 

Needles v. Needles 83 

Neeld (;. Neeld 46 

Neill V. Neill 307 

Neil's Appeal 277 

Neilson v. Cook 373, 374, 375 

Neimcewicz v. Gahn 95 

Nelson v. Eaton 402 

V. Garey 72 

V. Goree 198 

V. Green 304 

V. Holly 155 

V. Lee 330 

V. Miller 143 

V. Searle 59 

V. Smith 119 

V. Stocker 425 

V. Wyan 272 

Netterville v. Barber 167 

Nettleton v. State 317 

Neufville v. Thompson 162 

Neves v. Scott 174, 177 

Nevius V. Gourley 114, 155 

Newbery, In re 340 

Newbrick r. Dugan 164 

Newcomen v. Ilassard 133, 134 

Newcomer's Appeal 307 

New Hampshire Fire Ins. Co. n. 

Noyes 403, 411 

Newlands );. Paynter 82, 104, 132 

Newman v. James 124 

V. Morris 169 

V. Reed 353, 374, 370 

Newport v. Cook 238, 240 
Newry & Enniskillen R. R. Co. v. 

Coombe 407 

Newton v. Hatter 77, 79 
V. London, Brighton, &c. R. 

R. Co. 450 

V. Roe 57 

Nichol V. Martyn 477, 487 

V. Steger 413 

Nichols V. Allen 279 

V. O'Neill 89 

Nicholson v. Heiderhoff 148 

V. Spencer 337 

V. Wilborn 71, 313, 413, 449 

Nicholson's Appeal 316, 317, 348 

Nickerson v. Easton 267 a 

V. Howard 457 

Nickson ?•. Brohan 489 

NicoU, Matter of 301 



Section 

NicoU, V. Greaves 458 
Nightingale v. Withington 252, 267 a, 
268, 402, 404 

Niller v. Johnson 187 

Nimmo v. Walker 473 

Nine v. Starr 279 

Nippe's Appeal 188 

Nisi)el V. Lnparle 106, 167 

Nissley v. Ileisey 110, 155 

Noble V. Runyan 361 

Noice V. Brown 260, 487 

Nolte V. Libhert 402 

Norbury v. Norbury 353 

Norcross v. Stuart 77 

Norris v. Beyea 114 

V. Dodge's Admr 241 

V. Lantz 85 

V. Vance 437, 445 

North, In re 235, 333 
North American Coal Co. v. Dyett 138 

Northcote v. Doughty 433 

Northern Line Packet Co. v. 

Shearer 53 

North Penn. R. R. Co. v. Maho- 

ncy 429 

Northwestern Life Ins. Co. v. Allis 145 

Norton r. P'azan 66 

V. Nichols 58 

V. Rhodes 65 

V. TurviU 134 

Norwood V. Stevenson 79 

Nowlan v. Ablett 458 

Noyes v. Bhikenian 138 

Nugent V. Vetzera 328 

Nunn V. Hancock 356 

Nurse v. Craig 68 



o. 

Oakes v. Cakes 269 
Oakley v. Pound 143 
Obermayer v. Greenleaf 174 
O'Brien v. Strang 376 
O'Coiuur V. Carver 385 
O'Connor i'. Adams 492 
O'Daily v. Morris 58, 148 
Odeiid'hal v. Devlin 188 
Offley V. Clay 58 
O'Flahertv v. Union R. R. Co. 429 
O'Gara y.'Eisenlohr 204 
Ogden !'. Prentice 63, 64 
Oglander v. Baston 88 
Oglesby Coal Co. v. Pasco 58, 97 
Oglcsby V. Hall 109 
O'Hara v. Alexander 137 
V. Shepherd 350, 353, 373 
Ohio, &c. R. R. Co. V. Hammers- 
ley 492 
O'Keefe v. Casey 317, 319 



TABLE OF CASES. 



llX 



Section 
O'KiU V. Campbell 124, 127 
Oinson V. Heritage GO, G7 
Okliu V. Saraborn 3S9 
Oliver v. Iloudlet 337, 344, 402 
V. McClellan 423 
V. McDuffie 413 
V. Oliver 34 
V. Woodroffe 40G 
Olivier, Succession of 2Go 
Olney v. Howe 71 
O'Neil's Case 31G 
Onslow, In re 433 
Opdyke's Appeal 277 
Ord V. Blackctt 333 
Ordinary v. Heishon 366, 37G 
V. Smith 3G7 
V. Thatcher 3GG 
Ordway v. Bright 124 
V. Phelps 388 
V. Smith 303 
Oriental Bank v. Haskins 187 
Orland's Case 89 
Orleans Probate Court v. Child 377 
Orneville i'. Glenbuni 2G3 
O'Roi-ke V. Bolinbroke 452 
Orvis V. Kimball 435 
Osborn v. Allen 245 
V. Gillett 259. 487 
Osborne v. Edwards 85, 89, D2 
V. Van Horn 239, 210 
Osburn v. Farr 414 
Osgood V. Breed's Heirs 272 
Oswald V. Broderick 437 
Otte V. Becton 238, 210 
Ottman v. Moak 438 
Overliolt V. Ellswell 79 
Overseers of Alexandria v. Over- 
seers of Bethlehem 252 a 
Overton v. Bannister 425 
V. Beavers 337 
f. State 53 
Owen V. Bryant 281 
V. Cawiey 130, 149 
V. Gooch 481 
V. Horaan 134 
V. Long 404 
V. Peebles 353, 374 
V. State 44, 457 
V. White ' 241 
Owens V. Chaplain 457 
V. Cowan 361 
V. Dickenson 134 
V. Mitchell 374 
V. Walker 4U 
Oxford V. Peter 491 
Oxley V. Tryon 407 
Oxnard v. Swanton 168 
Ozley V. Ikelheimer 124 





Section 


Packard v. Arel lanes 




7 


Packer v. Windham 




88 


Paddock V. Wells 




16 


Padfield v. Padfield 




205 


Page V. Defrics 




490 


V. Marsh 




457 


V. Morse 




446 


V. Page 




94 


0. Wells 




478 


Paine v. Farr 




153 


V. Hunt 




145 


Palmer v. Miller 


404 


438 



V. Oakley . 301, 306, 308, 351, 361 

I'. Portsmouth 461 

V. Trevor 83 

Palmes v. Danby 347 

Pardridge v. La Pries 489 

Parish of St. Andrew v. De Breta 237 

Park V. Hopkins 75 

Parke v. Barron 22 

V. KIceber 61 

Parker v. Baker 402 

V. Brooke 105, 108 

V. Converse 129 

V. Elder 446 

V. Lincoln 305 

V. Parker 18 

V. Piatt 478 

V. Simonds 145, 108 

V. Steed 57 

V. Way 225 

Parker's Appeal 16 

Parks V. Cushman 83 

Parmele v. McGinty 363, 385 

Parmelee v. Smith 253 

Parmell, Goods of 300 

Parshall v. Fisher 168, 169 

Parsons v. Hill 402 

V. Keys 413, 414 

V. Ivinzer 453 

V. Trask 460 

Parton v. Hervey 20 

Partridge v. Stocker 164, 165, 168 

Paschall v. Hall 189 

V. Thurston 87 

Passenger K. R. Co. v. Stutler 431 

Patcliett V. Ilolgdte 225 

Patchkin v. Cromack 404 

Paterson v. Gandasequi 481 

Patnote v. Sanders 473 

Patrick v. Littell 143, 144, 158 

V. Patrick 188 

Pattee v. Harrington 77 

Patten i>. Patten 120, 153, 155 

Patterson v. Flanagan 152 

V. Gaines 21, 225 

V. High 200 

i\ Lawrence 157 

Patton V. Charlestown Bank 136 



Ix 



TABLE OF CASES. 



Section 

Patton V. Furthmier 450, 451 

V. Gates 168 

V. Ilassinger 241 

V. Thompson 361, 386 

Paty V. Smith 330 

Paul V. Children 281 

V. Hummel 263 

V. York 448 

V. Paulding's Will 37 

Paulin V. Ilowser 263 

Pauhnier v. Erie R. li. Co. 492 

Pawson V. Brown 16 

Payne v. Ilutcheson 188 

V. Scott 338 

V. Stone 351 

Peacock v. Peacock 333, 473 

Peacock's Trusts, Re 163, 166,167,210 



Peake v. La Baw 
Pearce v. Olney 
Pearman v. Pearman 
Pearson v. Darrington 

V. McMillan 
Peaslee v. McLoon 
Peck V. Braman 

V. Peck 
Pedley v. Wellesley 
Peigne v. Snovvden 
Pellage v. Pellage 
Pemberton v. Johnson 

V. McGill 
Pence v. Dozier 
Pendrell v. Pendrell 
Penfold V. Mould 
Penleaze, Ex parte 
Penn v. Ileisey 

V. Wliiteheads 

V. Young 
Pennington v. Fowler 



145 

238 
44 
61, 64, 68 
376, 382 
53 
373 
26, 27 
53 
186 
268 
148 
156 
262 
225 
189 
238 
389 
154,164, 165,168 
155 
326 



Pennsylvania E. v. Baiitom 250 

V. Keller 259 

V. Lynch 492 

Penn. R. R. Co. v. Kelly 262 

Penrose i^. Curren 424 

Pentz V. Simonson 14.3, 150 

People V. Board of Education 235 

V. Boice 249, 298 

V. Brooks 249 

V. Byron 321, 322 

V. Ciiegaray 248 

V. Circuit Judge 360 

V. Clark 261 

V. Dean 394 

V. Gates 457 

V. Houghton 53 

V. IngersoU 350 

V. Juvenile Asylum 457 

V. Kearney 300, 303 

V. Kendall 395 

V. Kling 278, 298 
V. Mercein 248, 249, 250, 251, 254 

V. New York 449 







Section 


People V. Olmstead 




245, 248 


V. Overseers 




225 


V. Pettit 




42 


V. Pillow 




457 


V. Randolph 




395 


V. Slack 




20 


V. Townsend 




395 


t'. Turner 




256 


V. Weissenbach 




457 


V. Wilcox 245, 305, 


308 


332, 333 


V. Winters 




44 


V. Wright 




60 


Pepper v. Lee 


117 


123, 124 


V. Smith 




150 


V. Stone 


315 


321, 322 


Pepperell v. Chamberlain 




86 


Perkins v. Cottrell 




89 


V. Elliott 




143, 145 


V. Finnegan 




316 


V. Perkins 




190 


V. Smith 




482 


Perliiian ly. Phelps 




252a 


Perrin v. Wilson 




413 


Perry v. Bailey 




473 


V. Brainard 




311 


V. Carmicliael 


255, 


259, 324 


V. Perry 




269 


V. Ricketts 




492 


V. Simjison & Co. 




472, 474 


V. Wliilehead 




281 


Ferryman v. Burgster 




450, 451 


Person v. Chase 


407 


,421,443 


Peters v. Fleming 




411,413 


V. Fowler 




120 


V. Lord 




487 


Petersham v. Dana 




278 


Peterson v. Haffner 




423 


V. laik 




440 


V. Slate 




398 


Petre, Ex parte 




239 


Pettus V. Clauson 




354 


V. Sutton 




353 


Petty V. Anderson 




163 


V. Roberts 


440, 


442, 446 


Peyton v. Smith 




299 


Pf'eiffer v. Knajip 




382, 385 


Pfirshing v. Falsh 




149 


Pilaris V. Leachnian 




89 


Phelps V. Culver 




457 


V. Morrison 




187 


V. Phelps 




83 


V. Wait 




482 


V. Worcester 




412, 413 


Philadelphia v. Williamson 


17 


Phillippi ('. Commonwealth 


279 


Phillips, Ex parte 




347, 357 


V. Allen 




225 


V. Barnet 




52 


V. Davis 




3.38, 374 


V. Dnscnberry 




452, 453 


V. Fo.xall 




476 



TABLE OF CASES. 



Ixi 



Phillips I'. Graves 

0. Green 405, 409, 

V. Meyers 

V. Phillips 

V. Wooster 
Phillipson v. Hayter 
Philpot V. Bingliam 
Phoebe v. Jay 
Picard v. Hine 
Pickering v. De Rocliemont 

V. Pickering 
Pickler v. State 
Pico, Re 
Pidgin V. Cram 
Pierce, Matter of 

V. Irish 

V. Millay 

V. Pierce 

I'. Prescott 

V. Waring 
Pierson v. Liim 
Pigott V. Pigott 
Pike V. Baker 72, 

Pilkington v. Scott 
Pillar V. Pillar 
Pillow V. Bushnell 
Pirn V. Downing 
Pina V. Peck 
Pinard's Succession 
Pingree v. Goodrich 
Pinkston v. McLemore 
Pinney v. Fellows 112, 

Pippen V. Wesson 114, 

Pitcher v. Laycock 

V. Turin Plank Road Co. 
Pitt V. Pitt 

V. Smith 
Pittman v. Pittman 
Pitts V. Cherry 
Pixler V. Nichols 
Place V. Rhem 
Planche v. Colburn 
Planchet, Succession of 
Platner v. Patchin 
Ploss V. Thomas 
Plotts V. Rosebury 
Plowes V. Bossey 
Plumer v. Lord 
Plummery. Webb_ 252, 

Poindexter v. Jeffries 
Pollard V. New Jersey R. 
Pond V. Carpenter 

V. Curtiss 

!'. Skeen 
Pool V. Gott 
Pooley V. Webb 
Poor V. Gansett 
Pope V. Jackson 

V. Sale 

Porch V. Fries 96, 

Port V. Port 



Section 




Section 


143 


Porter V. Allen 


53 


438, 439 


V. Bank of Rutland 


123, 124 


187 


V. Bleiler 


381 


363 


V. Briggs 


61 


187 


V. Caspar 


155 


61, 63 


V. Ganiba 


167, 168 


401, 406 


V. Haley 


149 


473 


V. Mount 


75 


134, 135 


Porterfield v. Augusta 


37 


77, 382 


Portsmouth, Countess of, 


V. Earl of 


72 


Portsmouth 


23 


406 


Posey V. Posey 


397 


277 


Post, Ex parte 


452 


241 


Post's Estate 


352 


290 


Poston V. Young 


304 


872, 388 


Potinger v. Wightman 


230, 334 


259, 429 


Pott ('. Cleg 


82 


183 


Potter V. Faulkner 


492 


376, 386 


V. Hiscox 


352, 377 


387 


V. State 


367, 369, 376 


150 


Potts V. Cogdell 


177 


88 


Poultney v. Glover 


269 


116, 190 


V. Randall 


377 


460, 469 


Poulton V. Soutli-Western R. R. 


44 


Co. 


491 


77 


Powell V. Boon 


353 


322 


V. Cleaver 


246, 288 


226 


V. Cobb 


24 


7 


V. Evans 


352 


14 


V. Gott 


406 


162 


V. Jones 


381 


125, 186 


V. Manson 


181 


143, 148 


V. North 


351 


440, 446 


V. Powell 


38 


431 


Powers ('. Russell 


71 


88, 203 


V. Totten 


158 


18 


Powes V. Marshall 


77,82 


221 


Prall V. Smith 


114 


301 


Pratt /'. Jenner 


221 


473, 478 


V. McJunkin 


369, 376, 388 


187 


V. Nitz 


278 


472 


;;. Pratt 


269 


7 


V. Wright 


329, 366 


57 


Pray v. Gorham 


254 


168 


Prebble i^. Boghurst 


176 


241 


Preble v. Longfellow 


337 


225 


Prentice v. Decker 


253 


169 


Prentiss v. Ledyard 


458, 463, 473 


259, 260 


Prescott V. Brown 


80 


188 


V. Fisher 


56 


78 


V. Morris 


424, 425 


14 


Preston v. American Linen Co. 464, 


343, 350 




475 


183 


Preusser v. Hcnshaw 


169 


251 


Prevot V. Lawrence 


115 


127 


Prewit V. Wilson 


174 


237 


Price, In re 


45 


360 


Matter of 


361, 363 


278 


V. Duggan 


450 


202, 313 


V. Hewett 


425 


26,27 


V. Jenkins 


174 



Ixii 



TABLE OF CASES. 



Price V. Price 

V. Sanchez 

V. Sanders 

V. Strange 

V. Winter 
Prichard v. Ames 

V. Priciiard 
Prickett v. Prickett 
Priestley v. Fowler 
Pritcliard v. Hitclicock 
Probate Court v. llibbard 

IK Strong 
Proctor V. Sears 
Prole V. Soady 
Proud foot V. Poile 
Proudley v. Fielder 
Prout V. Hoge 

V. Koby 

j;. Wiley 
Prouty V. Edgar 
Provost V. Carlin 
Prowse V. Spurway 
Pulbrook, In re 
Purdew v. Jackson 
Pursley v. Hayes 

V. Hays 
Pusey V. Harper 
Putnam v. Putciiie 

V. Tennyson 

V. Town 
Pybus V. Smith 
Pyle V. Cravens 



Q- 



434 



435, 
416, 



94, 



Section 

73 

121 

412,414 
205 
435 
105 
44 
269 
492 
478 
329 
SOG 

435, 437 
221 
450 
107 
115 
124 

439, 410 

418, 426 

472 

29 

246 

98 

861 

439 

188 

350 

59 

269 

110, 137 
406 



Queen ?•. Allen 


21 


V. Carnatic R R. Co. 


111 


V. Cresswell 


29 


V. Curgerwen 


21 


V. Kenny 


51 


V. Lumley 


21 


V. Prince 


260 


Querin v. Carlin 


388 


Qiiidort V. Pergaux 


162 


Quigley v. Graham 


114 


Quincy v. Quincy 


66 


Quinlan v. Quinlan 


178 



R. 

R. V. Pucklcdiurch 458 

Rabb V. Aiken 89 

Rabe v. Hanna 41 

Racouillat v. Requena 372 
Radford v. Carwile 129, 133 

Railroad v. Hanning 461 

Railroad Co. v. Fort 492 

V. Harris 91 





Section 


Railsback v. Williamson 




382 


Rainey i'. Rainey 




155 


Rainsford v. Rainsford 




439 


Ralston, Ex parte 




333 


V. Kohl 




472 


V. Laliee 




453 


Ramsay v. Ramsay 805, 


316, 832 


333 


I'. Richardson 




174 


Randall v. Lunt 




188 


V. Randall 43, 188, 


191, 217 


218 


V. Sweet 




414 


Randies v. Randies 




188 


Rankin v. Kemp 




343 


V. Miller 




361 


V. Warner 




453 


Ransom v. Nichols 




198 


V. Ransom 




192 


Ransome v. Burgess 




238 


Rapalje v. Norsworthy 




388 


Railibun V. Colton 




375 


Rawlings v. Bell 




470 


Rawlins v. Rounds 




77 


V. Vandyke 




69 


Rawson r. I'ennsylvania R. R. Co. 


208 


Ray, Ex parte 




105 


V. Haines 




443 


V. Tubbs 


414, 424 


431 


Raybold v. Raybold 




162 


Rayland i\ Justices 




377 


Raymond v. Loyl 




241 


r. Minton 




457 


V. Sawyer 




343 


Rayner v. Mitchell 




491 


Raynes v. Bennett 


53,61 


Rea v. Durkee 


06, 69 


V. Tucker 




53 


Read r. Drake 




305 


V. Teakle 




64 


Reade r. Earle 




155 


V. Livingston 112, 


175, 186, 


187 


Reading i'. Mullen 


167, 169 


170 


Ready v. Bragg 




188 


V. Hamm 




210 


Ream f. Watkins 


267 a 


268 


Redd V. Jones 




363 


Rcfldie V. Scoolt 




261 


Redfield v. Buck 




188 


Redgrave v. Redgrave 




63 


Redman v. Chance 




308 


Reed r. Batchelder 


403 


404 


V. Beazley 




218 


c. Boshears 




445 


V. Legard 




67 


V. Moore 




66 


V. Ryburn 




375 


V. Timmins 




354 


V. Williams 




262 


Reeder v. Flinn 




155 


Reeds v. Timmins 




376 


Rees r. Keith 




83 


Reese v. Chilton 




66 



TABLE OF CASES. 



Ixiii 





Section 




Section 


Reeves v. Eeeves 


21 


Rex V. Saunders 


468 


I'. Webster 


118, 120 


V. Shinfield 


473 


Regina v. Bleasdale 


4!)a 


V. Soper 


278 


V. Brighton 


10 


V. Sow 


458 


V. Chad wick 


16,21 


V. Standon Massey 


458 


V. Chark 


250, ;;32 


V. St. Helen's 


458 


V. Clarke 


235 


V. Sutton 


286 


V. CoUingwood 


279 


V. Twyning 


227 


r. Daniel 


487 


V. White 


398 


V. Edwards 


244 


V. Wifiiams 


398 


V. Howes 


250 


V. Wilmington 


267 


V. Kelly 


45 


V. Wilson 


408 


V. Lord 403 


407,421 


V. Woodhurst 


458 


V. Millis 23, 27, 28 


V. Worfield 


458 


i;. Nicholas 


898 


Reynolds, Matter of 


301, 322 


V. OrgiU 


28 


V. Brandon 


183 


V. Phillips 


395 


j;. Lansford 


189 


V. Plummer 


54 


V. Reynolds 


23 


V. Preston 


458 


V. Robinson 


162 


V. Kavenstonedale 


458 


V. Sweetser 


66, 237 


V. Smith 


251, 468 


V. Walker 


354, 372 


V. Wliite 


244 


Rhea v. lihenner 


219 


Register v. Hensley 


20(5 


Rhett V. Martin 


452 


Reich V. Reich 


188 


Rhoads v. Rhoads 


452 


Raid 1'. Laing 


27 


Rice V. Hoffman 


89, 116 


i;. Rochereau 


7 


V. Lumley 


221 


Reniders v. Koppclmann 


232 


V. Rice 


31 


Renaux v. Teakle 


61,64 


Rice's Case 300, 303 


328, 329 


Rennie v. Ritchie 


103 


Rich r. Cockell 104 


131, 137 


Resor v. Resor 84, 


175, 191 


Richards v. Burden 


53 


Revett V. Harvey 


388 


V. Hayward 


477 


Rex V. Barton 


4(52 


V. Richards 


44, 451 


V. Birmingham 


30 


Richardson v. Boright 


404, 437 


V. Brazier 


398 


V. Boynton 


366, 3(57 


V. Burton 


23 


V. Du Bois 


67 


V. Burton-upon-Trent 


24 


V. Fouts 


262 


V. Coggeshall 


458 


V. Kimball 


482 


V. Delarel 


246 


V. Linney 


388 


V. Flintan 


Gl 


V. McGoldrick 


472 


V. French 


82 


V. Merrill ] 19, 162, 


164, 165 


V. Great Bowdtn 


458 


V. Richardson 


350 


V. Greenhill 24G, 248, 


250, 332 


V. State 


386 


V. Hodnett 


30 


V. Stodder 


123, 137 


V. Hopkins 


278 


Richardson's Case 


255 


V. Hoseason 


490 


Richmond v. Tibbies 


150 


V. Htiggins 


403 


Ricker v. Ham 


187 


V. Inliabitants of Sourton 


225 


Rickerstriker v. State 


53 


V. Inhabitants of Wigston 


419 


Hideout's Trusts, In re 


225 


11. Isley 


240 


Rider v. Hulse 


161, 162 


V. Killingholme 


458 


V. Kelso 


270 


V. Luffe 


225 


Ridgely v. Crandall 


403 


V. Minshull 


24 


Ridgway v. English 


269 


V. Moseley 


278 


V. Ilungerford Market Co 


462. 


V. Mountsorrel 


419 




463, 473 


V. Munden 


237, 265 


Ridout V. Earl of Plymouth 


208 


V. North wingfield 


458 


Riggs V. Fisk 


440 


I'. Oakley 


286, 350 


Riley v. Byrd 


277 


V. Pierson 


311 


V. Jameson 


254 


r. Pike 


398 


V. Mallory 


407, 409 


V. Roach 


2(57 


V. Riley 


88, 175 


V. Rotherfield Grays 


267 


Rimell v. Sampayo 


489 



Ixiv 



TABLE OF CASES. 





Section 




Section 


King V. Jamison 


445 


Rogers v. Smith 


258 


liinker v. Stroit 329, 


338, 339 


V. Steele 


443 


Rippon I'. Dawding 


176 


V. Turner 


241 


liisdon, Goods of 


200 


V. Ward 


143 


Rivers n. Carleton 


1G2 


Rohrer v. Morningstar 


451 


V. Durr 


453 


Rollins V. Marsli 321, 337, 


343, 344 


V. Gregg 


413 


Rooke 1'. Lord Kensington 


183 


V. Tliayer 


177 


Roosevelt v. EUitliorp 


200 


Rives V. Sneed 


232 


Root V. Stevenson's Adm'r 


424 


Roacli V. Garvan 313, 316, 


317, 332 


Roper's Trusts, In re 


239 


V. Jelks 


375 


Rose V. Brown 


188 


V. Quick 


56, 416 


V. Sanderson 


114 


Roadcap v. Sipe 


75 


Roseberry v. State 


487 


Robalina v. Armstrong 


278 


Roseborough v. Roseborough 


338 


Robbins ?>. Cutler 


407 


lioss V. Cobb 


350 


V. Eaton 


438, 441 


V. Ewer 


139 


V. Mount 


423 


V. Gill 


350 


Robert v. Morrin 


382 


V. Ross 


68, 232 


Roberts, Matter of 


375 


V. Singleton 


59 


V. Dixwell 


107 


V. Southwestern R. 


303, 329 


V. Frisby 


190 


V. Winners 


57 


V. Kelley 


71 


Ross's Trust, /n re 


110 


V. Place 


86 


Rounds V. Delaware R. 


490 


V. Polgrean 


87 


Roundy v. Thatcher 


448 


V. Sacra 


343 


Ivourke v. Colliery Co. 


461 


V. Smith 


492 


Routh V. Howell 


352 


V. Spicer 


105 


Routledgo r. Carruthers 


225 


V. Stanton 


451 


Rowe V. Chichester 


87 


V. Wiggin 


440 


V. Hopwood 


433 


Robertson v. Cole 


24 


V. Rowe 


137 


V. Cowdry 


27 


Rowland v. Jones 


448 


V. Norris 


90 


V. Plummer 


190 


V. Robertson 


217 


Rowley v. Adams 


93 


V. State 


26,27 


V. Unwin 


141 


V. Wilbnrn 


58 


Rowney's Case 


89 


Robinson v. Burton 


262 


Royce v. Charlton 


457 


V. Cone 


429 


Royer's Appeal 


347, 348 


V. Gee 


209 


Royston v. Royston 98, 337 


338, 373, 


V. Gosnold 


66,67 




375 


V. Hersey 


343, 351 


Ruddock V. Marsli 


72 


V. Hoffman 


154 


Rugh V. Ottenliciiiicr 


13, 114 


V. Hoskins 


435 


Runifelt V. Clcmciis 


150 


V. O'Neal 


117, 136 


Rumney v. Ke^ es 


65, 237 


V. Robinson 53, 58, 94, 272, 354, 384 


Rundel v. Keeler 


411 


V. Webb 


461 


Runkle v. Gale 


373 


V. Weeks 403 


407, 442 


Ruscombe v. Hare 


209 


V. Zollinger 


300, 316 


Rush V. Wick 


402, 415 


Robson r. Osborn 


449 


V. Vanvacter 


248, 250 


Roby V. Plielon 


192 


V. Vought 


154, 267 


Roche V. Chaplin 


345 


Russel V. People's Savings Bank 145 


V. Hart 


354 


Russell V. Brooks 


80,81 


Rochfort V. Fitzmaurice 


182 


V. Coffin 


319 


Rodgers v. Pike County Bank 


83 


V. Irby 


491 


Roe V. Deming 


260 


V. Russell 


356 


Rogers v. Brightman 


175 


I?. St. Aubyn 


182 


V. Brooks 


89 


Russell's Appeal 


183 


V. Cunningham 


183 


Ruttinger v. Temple 


279 


V. Dill 


856, 363 


Ryall V. Kennedy 


230 


V. McLean 


329 


Ryan v. Fowler 


492 


V. Millard 


273 


V. Madden 


77 


V. Rogers 


112 


Ryder, In re 


241 



TABLE OF CASES. 



Ixv 



Ryder v. Bickerton 
V. Hulse 
V. Wombwell 



S. 

Sabel V. Slingluff 
Sackett's Estate 
Sadler v. Robinson 
Safe V. Hammonds 
Sage V. Hammonds 372, 
Sale V. Crutclifield 

V. Saunders 
Salisbury v. Van Hoesen 
Sallee v. Arnold 
Salter v. Howard 
Saltmarsli v. Candia 
Sammis v. McLaughlin 
Sams V. Stockton 
Sanders v. Forgasson 
Sanderson v. Robinson 

V. Sanderson 
Sandiland, Ex parte 
Sands r. Child 
Sanford v. Augusta 

V. Lebanon 

V. Sanford 
Sapp V. Newsom 
Sargent v. Mathewson 
Sartoris, Goods of 
Sasscer ?'. Walker 
Satterfield v. John 
Sattertliwaite v. Emiey 
Saul r. His Creditors 
Saunders v. Saunders 
Saunderson v. Bell 

V. Marr 
Savage v. Davis 

V. Dickson 

V. Robertson 

t'. Walthew 
Savery v. King 
Saville v. Sweeney 
Sawyer v. Knowles 

V. Sauer 
Sayers i'. Cassell 
Scarman v. Castell 
Scawen v. Blunt 
Schafer v. Luke 
Schaffer v. Lavretta 

V. Reuter 
Scheel v. Eidman 
Schenck V. Strong 
Schiffer v. Prnden 
Schindel r. Schindel 
Schlosser's Appeal 
Schmeltz i\ Garey 
Schmidt )'. Holtz 

V. Milwaukee, &c. R. 



Section 

140 

114, 198 

411, 412 



92 

290 
446 
307 
373, 376, 382 
225 

89 
376 

82 
487 

77 
167 
411 
370, 377 
183 
316 

48 
482 

78 
237 
193 

27 
260 
329 
3G6 
388 
175 
393 

44 
489 
406 

58 
343 
281 
478 
271 

77 

381 

258, 262 

367 

468 

83 
361, 363 
405 
191 
377 
424 
221 

66 

68 

7 

121 

R. Co. 429 





Section 


Schmitheimer v. Eisenian 96, 


426, 447 


Schneider r. Starke 


89 


Schnuckle r. Bierman 


241, 260 


Sclioch V. Garrett 


273 


Schocnberg v. Voight 


252 a 


Sclioles V. Murray Iron Works 


Co. 37 


School Board v. Jackson 


235 


Sciiool Directors v. James 


334 


School District i'. Bragdon 


423 


Schrimpf v. Settegast 


273, 275 


SchulUiofer v. Metzger 


61 


Sciiultz V. State 


53 


Sell um pert, Ex parte 


248 


Scidmore v. Smith 


487 


Scobey v. Gano 306 


317, 377 


Scott r. Buchanan 


403, 439 


V. Freeland 


386, 389 


v. Gamble 


86 


V. Mayor of Manchester 


461 


V. Paquet 


18 


V. Porter 


448, 452 


V. Shufeldt 


23,24 


V. State 


388 


V. Watson 


423 


V. White 


268 


Scott's Account, In re 


377 


Scott's Case 


324 


Scranton v. Stewart 405 


437, 447 


Scrutton r. Pattillo 


83 


Seaborne v. Maddy 


241 


Seager v. Sligerland 


261 


Seaman, Matter of 


370 


I'. Duryea 


372 


Sears ;'. Giddey 


199 


V. Terry 


303, 308 


Seaton v. Benedict 


63,64 


Seaver i\ Morse 


474 


Seaverns v. Gerke 


303, 307 


Seavey v. Seavey' 


269 


V. Seymour 


419 


Sebastian v. Bryan 


367 


Secchi's Estate 


329 


Seigler v. Seigler 


374 


Seller v. People 


50 


Seitz p. Mitchell 


188 


Seitz's Appeal 


274 


Selby V. Seiby 


311 


Selden r. Bank 


115 


Selden's Appeal 


255 


Sellars v. Kinder 


262 


Sellen v. Norman 


468, 473 


Selover v. Commercial Co. 


121 


Semple v. Morrison 


406 


Senseman's Appeal 


3.32, 381 


Sequin v. Peterson 


253, 266 


Serle v. St. Eloy 


398 


Serres v. Dodd 


77 


Sessions v. Kell 


301 


Sewall r. Roberts 


232 


Seward v. .Tackson 


270 


Sexton V. Wheaton 


186 



Ixvi 



TABLE OP CASES. 



856, 
274, 



Seymour v. Greenwood 

Shal'er v. Alialt 

Shaffner v. Brings 

Sliat'lier v. State 

Shakespeare v. Markham 273 

Shallcross v. Smith 

Shanck v. Korthern, &c. K. R. Co 

Shanks v. Edmondson 8: 

V. Seamonds 
Shannon ?'. Canney 
Sliarp V. Cosserat 

V. Cropsey 

V. Findley 
Sharpe v. Foy 

V. McPike 
Sharpless r. West Chester 
Shartzer c. Love 
Shaw, Succession of 

V. CoLle 

V. Coffin 

V. Emery 

V. Partridge 

V. Reed 

I'. Shaw 

V. Steward 

V. Tlionipson 
Sheahan v. Circuit Judge 



Section 
490 

77 
3G3 

20 
473 

58 
402 
352 
SCO 
145 
186 
273 
448 
174 
155 
115 

58 
329 
374 
424 



72 

89 

491 

36, 46, 350 

88 

67 

452 



V. Wayne 347, 352 

Shearman v. Akins S22 

I'. Angel 281 

Slieldon v. Newton 439 

Shelley v. 225 

Shelton v. Springett 241 

Shenk v. Mingle 279 

Shepard v. Pratt 187 

Shepherd v. Bevin . 270 

V. Evans 343 

V. Mackoul 61 

Sheppard v. Starke 57 

Sheridan v. Charlick 491 

Sherman v. Ballon 381 

V. Brewer 383 

V. Champlain Trans. Co. 472 

V. Elder 168 

V. Hannibal 427 

V. Rochester R. R. Co. 492 

V. Wright 826 

Sherry r. Sansberry 889 

Sherwood v. Sherwood 120 

V. Smith 272 

Sheton V. Smith 367 

Sliields V. Keys 148 

Shipman v. Horton 400, 446 

Shipp V. Bowmar 133, 136 

V. Wheeless 361 

Shippen's Appeal 155 

Shirley (Ann), Ex parte 133 

Shirley i'. Shirley 82, 124, 125, 137 

ShoUenberger's Appeal 376 

Shook V. State 829 

Short V. Battle 124, 134, 137 



Section 

Shorter v. Frazer 385 

Showers r. Robinson 230 

Shrewsbury v. Shrewsbury 203 

Shropshire v. Burns 435 

Shroyer v. Richmond 293, 366 

Shumaker v. Johnson 95 

Shurtleff v. Millard 442, 446 

Sliuster V. Perkins 366 

Shuttlesworth v. Hughey 450 

Sibbett 1-. Ainsley 225 

Sichel V. Lambert 29 

Sickles V. Carson 23 

Sikes V. Johnson 423 

V. Truitt 366 

Sillings V. Bumgardner 343 

Silveus V. Porter 166, 167 

Simmons v. Almy 343 

17. McElwain 64, 188 

V. Wilmott 468 

Simms v. Norris 844 

Simons v. Howard 106 

Simpson v. Alexander 452 

V. Gonzales 316, 319 

V. Graves 174, 175, 186 

V. Simpson 218 

Sims V. Everhardt 96, 97, 409, 426, 447 

V. Ren wick 329 

y. Rickets 117, 189, 190, 191 

V. Spalding 92 

Simson v. Jones 399 

Sinclair v. Sinclair 453 

Singer v. McCormick 462 

Singer Man. Co. v. Rook 150, 156 

Singleton v. Love 385, 386, 389 

Sinklcar v. Emert 413 

Siter V. McClanachan 92, 94 

Skean v. Skean 42 

Skelton v. Ordinary 847 

Skillnian v. Skiilman 82, 162, 173, 188 

Skinner, Ex parte 246 

Skottowe V. Young 231 

Slanning v. Style 161, 191 

Slattery i'. Smiley 316 

Slaughter r. Cunningham 405, 407 

)•. Glenn 117 

Slaymaker v. Bank 83 

Sleath V. Wilson 490 

Sledge V. Boone 452 

V. Clopton 123 

Sleeman v. Wilson 282 

Sleigh V. Strider 226 

Sleight t'. Rend 114 

Sloan V. Hay den 475 

V. State 493 

Slocum V. People 261 

Sloper V. Cottrell 107 

Smalley v. Anderson 77 

Smalman i'. Agborow 90 

Smiley v. Meyer 168 

V. Smiley 73 

Smilie's Estate 83 



TABLE OF CASES. 



Ixvii 





Section 




Section. 


Smith V. Allen 


212 


Soullier v. Korn 


433 


V. Bate 


816, 317 


Southall V. Clark 


388 


V. Bean 


343 


Southard v. Plumraer 


114 


V. Bo wen 


432 


Southern v. How 


490 


V. Chappell 


173 


Southwestern R. v. Chapman 


255, 343 


V. Chirrell 


174 


Southwick V. Southwick 


30 


V. Davis 


61, 372 


South worth v. Packard 


77 


V. Derr 


231 


Spafibrd v. Warren 


150 


V. Dibrell 


352 


Spain V. Arnott 


462, 473 


V. Doe 


148 


Spalding v. Brent 


388 


V. Evans 


446 


Sparhawk v. Allen 


348 


V. Floyd 


450 


V. Buel 


391 


i;. Henry 


120 


V. Buell's Adm'r 


368 


V. Hestonville R. 


259 


V. Sparhawk's Ex'r 


238 


V. Hewett 


120 


Sparkes i'. Bell 


57, 134 


V. Kelly 


435 


Spaulding v. Day 


124 


V. Knowles 


218 


Spaun V. Collins 


305 


V. Knowlton 


268 


V. Jennings 


127 


V. Lapeer County 


237 


Spear v. Cunimings 


260 


V. Low 


438 


V. Spear 


354 


V. Lyke 


41 


Spears i'. Snell 


250, 457 


V. Moore 


177, 180 


Speer i'. Tinsley 


338 


V. Oliphant 


414 


Speight V. Knight 


308, 317 


V. Philbriok 


376 


V. Oiiviera 


261 


t;. Reclus 


450 


Spellman v. Dowse 


861 


V. Rog;ers 


273 


Spelman v. Terry 343 


348, 350 


V. Sackett 


439 


Spence, In re 


303 


r. Smith 18,216,252 a 


272, 353, 


Spence's Case 


304 




390, 451 


Spencer v. Carr 


405 


V. Starr 


127 


V. Earl of Chesterfield 


315 


V. State 


278 


V. Lewis 


89 


V. Thompson 


168, 472 


V, Spencer 


181 


V. Velie 


473, 474 


i;. Storrs 


72 


V. Young 


413 


Sperry v. Fanning 


344 


Smith's Appeal 


337 


V. Haslam 


114 


Smodt V. Lecatt 


222 


Spicer v. Earl 


443, 474 


Smout V. Ilberry 


212, 481 


V. Spicer 


21 


Smyley v. Reese 


199 


Spier's Appeal 


219 


Smyth V. State 


30 


Spinning v. Blackburn 


151 


Snavely v. Harkrader 316, 


329, 354, 


Spirett V. Willows 


105 




375 


Spooner u. Reynolds 


154 


Snediker v. Everington 252 a, 


254, 267 a 


Spots wood V. Barrow 


462, 463 


Snell V. Elam 


388 


Spratt V. Spratt 


249 


Snelsou v. Corbet 


208 


Spring V. Kane 


361, 363 


Snider v. Ridgeway 


68 


I'. Woodworth 


337 


Snodgrass's Appeal 


351 


Springer v. Berry 


150, 156 


Snook V. Sutton 


350 


Sproule V. Botts 


450 


Snover v. Blair 


66 


Squier v. Hydliff 


443 


Snow V. Cable 


162 


Squire v. Whipple 


457 


V. Paine 


155 


Stabler v. Cook 


388 


V. Sheldon 


166 


Stables, In re 


238 


Snowhill V. Snowhill 


330 


Stackpole v. Beaumont 


890 


Snyder v. Hannibal R. 


491 


Staley v. Barliito 


77 


V. People 


51, 122 


Stall V. Macalester 


361 


V. Webb 


173 


V. Meek 


72 


Snyder's Appeal 


127 


Stallwood V. Tredger 


29 


Somers v. Pumphrey 


94 


Stammers r. Macomb 


64 


Somerville v. Somerville 


230 


Standeford v. Devol 


83 


Somes V. Skinner 


343 


Standford v. Marshall * 


138 


Sotoraayor v. De Barros 


16 


Stanes v. Stanes 


218 


Soule u. Bonney 


23 


Stanford v. Murphy 


63 



Ixviii 



TABLE OF CASES, 



Stanley's Appeal 
Stansbury v. Bertron 
Stanton v. Bell 

V. Kirsch 

V. Willson 
Stapleton v. Croft 
Starbird v. Moore 
Stark V. Gamble 
Starke v. Harrison 
Starkey v. Starkey 
Starkie, Ex parte 
Starling v. Balkum 
Starr i-. Peek 

V. Wrioht 
Starrett v. Jameson 

V. Wynn 
State V. Alford 

V. Baird 

V. Banks 

V. Barrett 

V. Barton 

V. Beatty 

V. Bennett 

V. Bolte 

V. Brady 

V. Breice 

V. Brown 

V. Bunee 

V. Burton 

V. Camp 

V. Clark 

V. Clarke 

V. Cleaves 

V. Clottu 

V. Cook 

V. Craton 

V. Davis 

V. Dillon 

V. Dole 

V. Driver 

V Engelke 

V. Fleming 

V. Toy 

V. Grace 

V. Handy 

V. Harris 

V. Harrison 

V. Hays 

V. Henry 

V. Herman 

r. Hewitt 

V. Hodgskins 

V. Hooper 

V. Hoster 

V. Hughes 

V. Hulick 

V. Hull 

V. Hyde 

V. Joest 

V. Jolly 

V. Jones 



Section 

352 

267 a 

462 

120 

237,241,411 

5:3 

451 

354, 388 

89 

36 
339 
339 
220 
41(3 
373, 375 

81 
244 
248 
248 
251 
395 
279 

53 
372 

17 
261 

53 

392, 393 

244 

50 

338, 360 

391 

50 
256 
337 

45 

23 
396 

30 

48 
317 
388 
372, 374, 386 
373 
395 

17 
353 
208 
388 
225 
366 

26 

17 
377 
877 
115 
377 
308, 335 
313 

53 
261, 324 





Section 


State V. King 


248 


V. Learnard 


395 


V. Lewis 


308, 326 


V. Libbey 


251 


V. Mabrey 


48 


V. Martin 


366 


V. McKown 


317 


V. Miller 


26,27 


V. Morrison 


352, 353 


V. Murray 


884 


V. Oliver 


44,48 


V. Page 


367 


V. Paine 


248 


V. Parkerson 


50 


V. Paul's Ex'r 


377 


V. Pitts 


161 


V. Plaisted 404 


405, 437, 438 


V. Potter 


50 


V. Ransell 


61 


V. Rhodes 


44 


V. Rice 


260 


V. Richardson 


248, 250 


V. Scanlan 


398 


V. Scott 


245, 257 


V. Shackleford 


367 


V. Shumpert 


225 


V. Smith 


248, 251 


V. Steele 


360 


V. Stewart 


370 


V. Strange 


372, 377 


V. Taylor 


267 a 


V. Thorn 


367 


V. Tunnell 


373 


V. Walker 


484 


V. Weather wad 


395, 404, 420 


V. Whittier 


398 


V. Wilson 


53 


V. Womack 


374 


State Nat. Bank v. Robidoux 95 


Staton V. New 


94 


Stead V. Clay 


107 


V. Nelson 


134 


Stearns v. Weathers 


114 


Steckel's Appeal 


277 


Steed V. Cragh 


88 


Steedman v. Poole 


110 


Steel V. Steel 112, 


124, 268, 269 


Steele, Re 


374 


IK Tliacher 


260 


Steffey v. Steffey 


94 


Stehman v. Huber 


89 


Stein V. Bowman 


53 


Steinburg v. Menny 


53 


Stem's Appeal 


352 


Stephens, Succession of 


329 


V. James 


306, 329, 334 


Stephenson, Goods of 


196, 325 


V. Hall 


260 


V. Osborne 


218 


V. State 


395 


V. Stephenson 


450 



TABLE OF CASES. 



Ixix 





Section 


Section 


Stephenson v. Westfall 


391 


Stone V. Stone 265 


Sterling v. Adams 


426 


V. Western Transportation 


V. Arnold 


385 


Co. 458 


V. Potts 


212 


V. Wood 194 


Stern v. Freeman 


435, 445 


Stoolfos V. Jenkins 426 


S terry v. Arden 


188 


Stopford V. Lord Canterbury 238 


Stevens v. Armstrong 


491 


Storej' V. Ashton 491 


V. Parish 


150 


Storey's Appeal 272 


V. Keed 


158 


Storke v. Storke 840 


V. Savage 


390 


Story V. Johnson 488 


V. Story 


66,69 


V. Marshall 187 


Stevenson v. Belknap 


261 


V. Pery 413 


V. Bruce 


343 


V. Walker 318 


V. Gray 


29 


Stothoff V. Reed 374 


V. Hardy 


61 


Stoughton's Appeal 350, 356 


V. State 


369 


Stout V. Merrill 446 


Stevenson's Appeal 


372 


V. Perry 116 


Stewart, In re 


86 


Stovall V. Johnson 252 a, 253, 270 


V. Bailey 


361 


Strain v. Wright 446 


V. Ball 


120 


Strangeways v. Robinson 278 


V. Harvard College 


492 


Stratton's Case 343 


V. Menzies 


26,27 


Stringfellow v. Mariot 480 


V. Munchandler 


17 


Striplin v. Ware 245 


V. Tlobertson 


18,26 


Strode v. Magovvaa 225 



St. Ferdinand Academy v. Bobb 273 
St. George v. St. Margaret 227 a 
V. Wake 181 
Stidham v. Matthews 58, 94, 150 
Stigall V. Turaey 248 
Stigers v. Brent 453 
Stikeman v. Dawson 425 
Stiles V. Granville 267 « 
V. Stiles 190 
Still V. Hall 473 
Stilley V. Folger 173 
Stillraan v. Ashdown 175 
V. Young 324 
Stillwell V. Adams 58, 143, 148 
V. Miles 376 
Stinson v. Pickering 452 
V. Prescott 212 
St. John V. St. John 216 
St. John's Parish v. Bronson 61 
St. Joseph's Academy v. Augus- 
tine 338 
St. Nicholas v. St. Bodolph 457 
Stock V. McAvoy 272 
Stocken v. Stocken 238 
Stocker v. Brockelbank 471 
Stockley v. Goodwin 464 
Stockton V. Farley 68 
V. Wooley 206 
Stoddard v. Treadwell 473 
Stokes V. Brown 435 
V. Hatcher 419 
V. Shannon 148 
Stone V. Dennis 414 
I'. Dennison 443 
V. Dorrett 300, 316 
V. Hills 491 
V. McNair 61 



V. Strode 21 

Strohl V. Levan 263 

Strong V. Beroujon S43 

V. Birchard 303 

V. Foote 413 

V. Moe 338, 360 

V. Smith 83 

Stroop V. Swarts 76 

Strother u. Law 95 

Stroup V. State 311, 377 

Strouse v. Drennan 361 

Stuart V. Baker 446 

V. Lord Kirkwall 134 

Stubb V. Dixon 237 

Stuckey v. Mathes 18 

Studwell I'. Sliapter 425 

Stumpf V. Stnmpf 137 

Stumps I'. Kelley 450 

Stupp V. Holmes 451, 453 

Sturgis V. Champneys 85 

V. Corp 131 

Sturtevant v. Starin 69 

Stutely V. Harrison 307 

SuddeVth v. McCombs 353 

SulUvan v. Blackwell 388 

V. India Man. Co. 492 

V. Sullivan 24, 63 

Sullivan's Case 305 

Summer v. Howard 361 

Summers (•. Howard 385 

Sumner v. Conant 94 

V. Sebec 267 a 

Sutfin V. People 279 

Sutherland v Goff 843 

Sutphen v. Fowler 368 

Sutton V. Aiken 146 

V. Chetwynd 174 



Ixx 



TABLE OF CASES. 



Section 



Sutton y. Huffman 




261 


V. Nichols 




452 


V. Warren 




16 


Swafford v. Ferguson 


405, 


409 


Swain v. Duane 




117 


V. Fidelity lus. Co. 




452 


V. Tyler 




241 


Swan V. Dent 


U2 


382 


V. Wiswall 




94 


Swartwout v. Oaks 


295, 


353 


V. Swartwout 




318 


Swartz V. Hazlett 




269 


Swasey v. Antram 


166, 


1(39 


V. Vanderheyden 




414 


Sweet V. Sweet 




316 


Sweetwater Co. v. Glover 




468 


Swift, Re 




316 


V. Bennett 




414 


V. Kelly 




24 


V. Wennian 




221 


Swindall i;. Swindall 




854 


Swing V. VVoodrufi 




58 


Switzer v. Switzer 




218 


Sword V. Keith 


251 


473 


Sykes v. Chadwick 




190 


V. Dixon 


469 


,487 


V. Law lor 




258 


Sym's Case 




88 



T. V. D. 19 

V. M. 19 

Taff V. Hosmer 307 

Taft V. Sergeant 435 

Talbot V. Earl of Shrewsbury 235, 334 

V. Hunt 226 

V. Marshfield 163 

V. Provine 448 

Tallmadge v. Grannis 89 

Tallman v. Jones 167 

Tally V. Heffner 7 

Tanham v. Nicholson 271 

Tanner v. Skinner 238, 354, 372 

Tarbell v. Tarbell 173 

Tarble, Matter of 419 

Tarrant v. Webb 492 

Tate V. Pene 225 

V. Tate 445 

Tatterson v. Suffolk Man. Co. 458 

Tatum V. Holliday 385 

Taunton v. Plymouth 267 a 

Tawney »". Crowther 179 

Taylor, Re 299, 300, .306 

In re 247, 249 

V. Brewer 473 

V. Croker 402 

V. Dansby 402 

V. Glanville 138 

V. Green 76 



Section 

Taylor v. Hite 347, 352 

V. Jeter 230 

17. Kilgore 343 

V. I'hilips 357 

V. Slielton 64 

V. Staples 270 

V. Stone 124 

V. Taylor 388 

Teal V. Sevier 2.32 

Tealie v. Hoyte 386 

Teasd.ale v. Braithwaite 178 

Tebbets v. Hapgood 63 

Tebbs V. Carpenter 352 

Teller v. Bisliop 187, 188 

Temple v. Hawley 399 

Templeton v. Stratton 237 

Tenant v. Stoney 124 

Tenbrook v. M'Colm 320 

Tennant v. Stoney 124 

Tennessee Hospital v. Fuqua 367 

Tenney v. Evans 344, 351 

Terry v. Belcher 53 

V. Dayton 272 

V. Hutchinson 261 

V. McClintock 435, 438 

V. Tuttle 363 

Terry's Appeal 212 

Thacher v. Dinsmore 343 

V. Phinney 89 

Thacker v. Henderson 347 

Thackray's Appeal 350 

Thayer v. Gould 93 

Thing V. Libbey 414, 435 

Thoenberger v. Zook 94 

Thomas, In re ■ 304, 306 

V. Bennett 343 

V. Burrus 316 

V. Dike 443, 449 

V. Harkness 127, 190 

V. Tiiomas 61, 237 

V. Williams 366, 443, 464, 473 

V. Wood 92 

Thomasson v. Boyd 435 

Thompson v. Boardman 321, 350 

v. Brown 356 

V. Dorsey 241 

V. Feagin 188 

V. Gaillard 439 

V. Hamilton 407 

V. Harvey 68 

V. Howard 260 

V. Ketcham 393 

V. Lay 435 

V. McKusick 123 

V. Ross 261 

V. Strickland 437 

V. Thompson 61 

V. Weller 148 

V. Young 261 

Thomson v. Davenport 481 

V. Thomson 290 



TABLE OF CASES. 



Ixxi 



Section 

Thome v. Dillingliara 77 

V. Kathan 06 

Thornton i'. Grange 273 

V. McGrath 361 

Tliorp V. Batcman 27o 

Thorpe v. Shapleigh 66, 71 

Thrall v. Wright 4r2 

Throgmorton i*. Davis 77 

Thrupp V. Fielder 436 

Thrustout V. Coppin 87 

Thurlow V. Gilmore 433 
Thurston v. Holbrook's Estate 308 

Tibbs V. Allen 453 

V. Brown 77 

Tifft V. Tifft 263, 423 

Tillinghast v. Holbrook 409 

Tillman v. Shackleton 164 

V. Tillman 92 

Tillotson V. M'Crillis 268 

Tillotsons, Tn re 303 

Tiltoii V. Russell 413 

Timmins v. Lacy 225 

Timmons v. Tiramons 449 

Tinsley v. Roll 117 

Tipping V. Tipping 208 

Tipton V. Tipton 446 

Tllexan v. Wilson 208 

Tobey v. Smith 58 

I'. Wood 437 

Tobin V. Addison 343 

V. Crawford 489 

Todd V. Clapp 109, 437 

V. Kerrieh 458 

V. Lee 143, 164, 165 

Toland v. Stevenson 273 

Toler V. Slater 90 

Tomkins v. Tomkins 241 

Tompkins v. Tompkins 238 

Tong V. Marvin 304 

Tooke V. Newman 145 

Torrens v. Campbell 308 

Torrington v. Norwich 251 

Torry v. Black 343, 350 

V. Frazer 353 

Totten's Appeal 843 

Tourville v. Pierson 94 

Towle V. Swasey 200 

V. Towle 118, 189 

Towne v. Wiley 424 

Townsend v. Burnham 241 

V. Cox 451 

V. Downer 417 

V. Kendall 328, 333 

V. Tallant 324 

Tracy v. Keith 58 

Trader v. Lowe 150, 389 

Trapnall v. State Bank 407 

Trask i\ Stone 450 

Traver v. Eighth Avenue R. 262 

Tre main's Case 235, 340 

Tremont v. Mount Desert 269 



Section 
Trenton Banking Co. v. Woodruff 123 
Trevor v. Trevor \i<2 

Trieber v. Stover 167, 108 



Trimble v. Dodd 


238, 375 


Tritt V. Colwell 


83 


Tritt's Adni'r v. Caldwell's Adm'r 84 


Trotman v. Dunn 


462 


Troutbeck ;>. Boughey 


105, 100 


Trowbridge v. Carlin 


44 


Troy V. Ellcrbe 


308 


Trueblood v. Trueblood 


406 


Trueman v. Loder 


489 


Trull v. Eastman 


272 


Truss V. Old 321 


843, 350 


Tubb V. Harrison 


237, 273 


Tubbs V. Gatewood 


94 


Tucker v. Andrews 


181 


V. Bean 


448, 452 


V. Dabbs 


452 


V. Ma gee 


457 


V. McKee 


337 


V. Moreland 407 


439, 440 


Tucker's Appeal 


194 


Tudor V. Samyne 


88 


Tuel V. Wilson 


490 


Tugman v. Hopkins 


106, 482 


Tugwell v. Scott 


281 


TuUett V. Armstrong 87, 103, 


107, 110, 




134, 139 


Tune r. Cooper 


82 


Tunison v. Chambly 


437, 439 


Tunks V. Grover 


162 


Tupper V. Caldwell 


412 


Turberville v. Stampe 


493 


V. Whitehouse 


413 


Turner, In re 


305 


V. Collins 


271 


V. Cook 


53 


V. Crane 


83 


V. Jenkins 


452 


V. Mason 


462 


V. Meyers 


18 


V. Robinson 


462, 473 


I'. Turner 


240 


V. Vaughan 


279 


Turner's (Sir Edward) Case 


87,88 


Turnley v. Hooper 


180 


Turpin v. Turpin 401 


402, 407 


Turtle V. Muncy 


80 


Tuttle V. Chicago 


77 


I'. Hoag 


166, 168 


V. Holland 


64 


Tweedale v. Tweedale 


890 


Tyler v. Burringtoa 


273 


V. Lake 


105 


V. Revnolds 


232 


V. Tyler 


394 


Tyrrell v. Hope 


105 


Tj-rrell's Case 


101 


Tyson v. Latrobe 


351 


V. Sanderson 


354, 368 



Ixxii 



TABLE OF CASES. 



u. 

Section 

U. V. J. 19 

Ulil v. Commonwealth 60 

Ulirig V. Horstman 164, 1G(J 

Underhill v. Dennis 304, 305 

V. Morgan 189 

Underwood v. Brockman 343 

Unger v. Price 188 

United States v. Bainbridge 252 a, 250, 

401, 419 

V. Green 248 

V. Metz 207 a 

187 

425 
269 
439 



United States Bank v. Ennis 
Unity and Banking Association, 

In re 
Updike V. Ten Broeck 
Urban v. Grimes 



V. 

Vaden v. Hance 

Vail V. Meyer 

Van Arnam v. Ayers 

Van Aernam v. Van Aernam 

Vanartsdalen v. Vanartsdalen 

Vance v. Smith 

Vanderburg v. Williamson 

Vanderlieyden v. Mallory 

V. Vanderheyden 
Van Deusen v. Brower 

V. Van Deusen 
Vandevoort v. Gould 
Vandevort's Appeal 
Van Donge c. Van Donge 
Van Dorn v. Young 252, 

Vane v. Vane 
Van Epps v. Van Deusen 
Van Horn v. Freeman 
Van Home, Matter of 
Van Pelt v. Corwine 
Van Schoyck v. Backus 
Vansittart v. Vansittart 216, 

Van Valkenburg v. Watson 
Vanzant v. Davies 
Varick v. Edwards 
Varney v. Young 267, 

Vartie v. Underwood 94, 95, 

Vason V. Bell 174, 386, 

Vasse V. Smith 
Vaughan v. Parr 437, 

V. Vanderstegen 
Velde V. Levering 
Vernon v. Marsh 

Vider v. Commajere 229, 

Villard v. Cliovin 
Villareal v. Mellish 245, 

Vincent v. Parker 

r. Starks 343, 

V. State 



272 
151 

41 
225 
290 
188 
366 
128 
375 
451 
390 
115 
435 
270 
457 
280 
390 
261 
388 
443 
2(J9 
251 
241 
272 
272 
268 
137 
388 
424 
439 
134 
335 
112 
232 
338 
287 

89 
3ti6 
308 



Section 

Vine V. Saunders 75 

Viser v. Scruggs 146, 148 

Visoneau v. Pegram 133 

Voessing v. Voessing 339, 374 

Von Hoffman v. Ward 37 
Voorhees v. Presbyterian Church 192 

Voorhies v. Voorliies 439, 440 

Voris V. State 366, 367 

Vossel V. Cole 261, 262 

VouUaire v. VouUaire 305 

Vreeland v. Ryno 80 

V. Vreeland 118 

Vroom V. Marsh 23 



W. 

Wade, Succession of 53 

V. Cantrell 189 

V. Lobdell 372, 388 

V. State 398 

V. Thayer 490 

Wagener v. Bill 50 

AVagner v. Varner 232 

Wagstaff L\ Smith 105 

Wailing v. Toll 413, 451 

Wainwright v. Straw 480 

Wait V. Bovee 193 

V. Wait 221 

Waite V. North-Eastern R. R. Co. 429 

Waithman v. Wakefield 61 

Wakefield v. Mackay 23 

Wakeman v. Slierman 436 

Waldo V. Goodsell 78 

Waldron, Case of 248 

Wales V. Newbould 155, 190 

Walke V. Moody 363 

Walkenhorst v. Lewis 407, 451 

Walker v. Armstrong 183 

V. Beal 217 

V. Browne 337 

V. Chambers 457 

V. Cronin 456, 487 

V. Crowder 339 

V. Davis 424 

V Ellis 440, 442 

V. Howard 7 

V. Hull 452 

V. Hunter 489 

V. Laighton 63, 09, 237 

V. Mulvean 448 

V. Reamy 122 

V. Simpson 61, 69 

r. Stringfellow 217 

V. Thomas 398 

V. Veno 452 

V. Walker 83, 218, 272 

Walker's (Atme) Matter 239 

Wall V. Rogers 104 

Wallace v. Brown 361 



TABLE OF CASES. 



Ixxiii 





Section 




Section 


Wallace v. De Young 


488 


Water Co. v. Ware 


461 


V. Finberg 


143 


Waterman v. Wright 


373 


V. Holmes 


352 


Waters v. Brogden 


489 


V. Latham 


435, 439 


V. Ebrai 


347 


V. Lewis 


439 


Watkins, Ex parte 


301, 328 


V. Morse 


424 


V. Peck 


350 


V. Wallace 


182 


V. State 


324 


Waller i\ Arniistead 


388 


Watson V. Broaddus 


124 


Wallingsford v. Allen 


123, 191 


V. Cross 


414 


Wallis r. Bardwell 


350, 412 


V. Hensel 


413 


V. Campbell 


306, 377 


V. Riskamire 


188 


V. Day 


460 


V. Robertson 


92 


Walsh lu Powers 


438 


V. Stone 


353 


V. Walley 


464, 475 


V. Thurber . 


137 


V. Walsh 


452 


V. Warnock 


305, 307 


Walter, Ex parte 


458 


Watson's (Miss) Case 


110 


V. Walter 


120 


Watts V. Ball 


201 


Walton V. Broaddus 


117 


V. Cook 


361 


V. Erwin 


375 


V. Steele 


238 


Wanibold v. Vick 


252 a 


Waul V. Kirkman 


7,59 


Wann v. People 


367, 376 


Way V. Peck 


146, 148 


Waples i\ Hastings 


400 


Wayland v. Elkins 


490 


Ward V. Dulaney 


18 


Waymire v. Jetmore 


18 


V. Evans 


480 


Weaver v. Carpenter 


405, 406, 439 


V. Roper 


248, 332 


V. Halsey 


462 


V. Shallet 


188 


V. Jones 


405, 446 


V. Thompson 


200 


V. Thornton 


324 


Warde i'. Warde 


47,246,247 


Webb V. Cole 


461, 488 


Warden v. Jones 


175 


V. England 


457,471 


Wardlaw ik Gray 


388 


Webb's Estate 


7 


Wardle v. Claxton 


105 


Webber ;;. Spannhake 


61 


Wardwell v. Wardwell 


290, 299 


Webster v. Bebinger 


386 


Ware v. Brush 


439 


V. Conley 


351 


V. Cartledge 


431 


V. Hildreth 


154 


V. Coleman 


303 


Weed V. Beebe 


438 


V. Gardner 


186 


V. Burt 


472 


V. Polhill 


347,357 


V. Ellis 


343 


V. Ware 


83, 313, 352 


Weed Sewing Machine Co. v. Emer- 


Waring, In re 


399 


son 


94 


V. Darnall 


352 


Weeks v. Holmes 


252 a, 260 


V. Waring 


45,46 


V. Leighton 


268, 443 


Warlick v. White 


225 


V. Merrow 


241 


Warner v. Crouch 


94 


Weems v. Bryan 


89 


V. Erie R. R. Co. 


492 


Weger v. Penn. R. R. Co. 


492 


V. Heiden 


61 


Weisger v. Graham 


489 


V. Wilson 


308 


Weisker v. Lowenthal 


64 


Warren, Ex parte 


293 


Welch, Re 


249 


V. Haley 


112 


V. Burris 


337, 339 


i». Halsey 


124 


1-. Welch 


407 


V. Hofer 


3-29 


Welch's Appeal 


237 


V. Jennison 


203 


Welchman v. Sturgis 


473 


V. Ranney 


190 


Weld V. Walker 


199 


Warrender v. Warrender 


216, 218 


Well's Estate, In re 


281 


Warwick v. Bruce 


432 


Wellborn v. Weaver 


77 


V. Cooper 


402 


Weller v. Baker 


89 


V. Hawkins 


105 


V. Suggett 


329 


Washband v. Washband 


402 


Wellesley v. Duke of Beaufort 237, 


Washburn v. Hale 


80 


238, 


239, 246, 288 


V. Nashville, &c. R. R 


Co. 492 


V. Wellesley 


235, 246 


V. Sproat 


203 


Wells V. Chaffin 


364 


Waterbury v. Netherland 


206 


V. McCall 


129 



Ixxiv 



TABLE OF CASES. 



Wells V. Perkins 

V. Smith 

V. Tliorman 

V. Tvler 

V. Wells 
Wendell's Case 
Wennall v. Adney 
Wert V. Strouse 
West V. Errissey 

V. Forsythe 

V. Gregg 

V. Howard 

V. Penny 
Westbroolc v. Comstock 
AVesterman v. Westerman 
Westervelt ?'. Gregg 
Wcstgate V. Munroe 
Westmeath v. Westmeath 
Weston V. Stewart 
Westwick v. Tlieodor 
Wharton v. Mackenzie 
Wheaton v. East 

V. Phillips 
Wheeler v. Ahrenbeak 

V. Hotchkiss 
Wheeling v. Trowbridge 
Wheelwright v. Greer 
Wheidale v. Partridge 
Wliichcote v Lyle's Ex'rs 
Whipp V. State 
Whipple V. Dow 

V. Giles 
Whitaker's Case 
Whitcoinb v. Barre 

V. Josl^'n 
White V. Bayley 

V. Bettis 

V. Branch 

V. Campbell 

V. Cox 

V. Dance 

V. Flora 

t'. Henry 

V. Herrick 

V. Hildreth 

V. Izelin 

V. McNett 

V. Murtland 

V. Nesbit 

V. Oeland 

V. Palmer 

V. Parker 

V. Pomeroy 

V. Ross 

V. Story 
White's Appeal 
Whitehead v. Jones 
Whitfield, Ex parte 

V. Hales 

IK Lord Le Despencer 
Whiting V. Dewey 



Section 
273 
153 
136 
8;3 
391 
• 311 
4G8 
261 
182 

316, 319 
412 
175 

407, 435 
385 
53, 181 
114 
143 
216 
343 
457 

411, 413 

405, 439 
167 

407, 452 
221 
77 
279 
357 
399 
48 

239, 269 

61 

313 

77, 78 

425 

465 

188 

446 

262 

399 

200 

438 

252 a, 267 a 

399 

154, 203 
386 
143 

261. 262 
353 
162 
308 
348, 352, 353, 380 
304 
225 
143 
155 
385 
305 
246 
483 
351 



Section 

Whiting V. Earle 252 a, 267 

V. Stevens 94 

Whitingham's Case 399 

Whitley v. Murray 473 

Whitman v. Delano 75 

Wiiitmarsh v. Robertson 87 

Whitmore v. Whitcomb 457 

Whitney i'. Beckwith 162 

V. Dutch 401, 406, 408, 435 

V. AVhitney 316, 372 

Wliittlesey v. Fuller 193 

Whitworth r. Carter 68 

Whywall v. Champion 408 

Wickersham i\ Timraons 451 

Wickiser v. Cook 389 

Widgery v. Tepper 204 

Wieman r. Anderson 164 

Wier V. Still 23 

Wiggins 1-. Keizer 279 

Wiglitman v. Wightman 16 

Wigmore v. Jay 492 

Wilburn v. McCalley 129 

Wilcox V. Roath 435 

r. Todd 152 

Wilder v. Aldrich 189 

I'. Ember 450 

Wildman v. Wildman 83 

Wileck's Settlement, Re 281 

Wiley V. Gray 188 

Wilhelra V. Hardman 413, 443 

Wilie V. Brooks 446 

Wilkes V. Rogers 239 

Wilkinson v. Charlesworth 83 

V. Gibson 221 

V. Parry 394 

V. Wilkinson 154, 281 

t'. Wright 198 

Willard v. Eastham 136, 139, 158 

V. Fairbanks 343 

V. Pinard 478 

V. Stone 402 

V. Willard 23 

Willet V. Commonwealth 395 

William & Mary College v. Powell 188 

Williams, £'x7;a?-^e 248 

r. Amory 89 

i\ Avery 124 

V. Baker 96 

V. Barnes 269 

i\ Brown 405 

V. Carle 181 

V. Chambers 473 

V. Clough 492 

V. Cranstoun 482 

V. Duncan 363 

V. Finch 457 

V. Harrison 368, 404 

V. Heirs 397 

V. Hugunin 143, 148, 157 

V. Hutchinson 261, 262, 273 

V. Jeter 463 



TABLE OF CASES. 



Ixxv 





Section 


Williams v. King 


120, 14(3 


V. Mabee 


440 


V. Maull 


124, 191 


V. McGahay 


67 


V. McGrade 


no 


V. Moor 


401, 406, 487 


V. Morpjan 


8'J 


V. Morris 


4::!7 


V. Morton 


361, 367, m9 


V. Powell 


389 


V. Prince 


67 


V. State 


23, 395 


V. Wiggand 


363 


V. Wilbur 


151 


V. Williams 


26 


Williams' Case 


204, 356 


Williamson v. Codrir 


gton 281 


V. Parisien 


21 


V. Warren 


361 


V. Williams 


18 


Willick V. Taggart 


352 


Willis V. Childe 


471 


V. Fox 


350, 372 


V. Snelling 


82 


V. Twombly 


409, 437 


Williston V. White 


379 


Wills V. Sayers 


105 


Wilis' Appeal 


350, 352 


Wilson V. Breeding 


198 


V. Ford 


61 


V. Goit 


77 


I'. Jones 


136, 143 


V. Kohllieim 


270 


V. Loomis 


169 


V. McLaughlin 


482 


V. McMillan 


252 a, 270 


t'. Merry 


492 


V. Peverly 


491 


V. Timiman 


489 


V. Wilson 


57, 216, 239, 269, 



324 
Wilt 7-. Vickers 259, 262 

Wilthaus V. Ludicus 164 

Wilton r. Hill 134 

V. Middlesex U. 258 

Wimberley r. Jones 438 
Wiiicliester v. Thayer 402, 408 

Windland v. Deeds 273 

Windsor v. Bell 155 

1-. McAtee 316 

Wing V. Goodman 53 

17. Rowe 888 

V. Taylor 16 

Winn V. Sprague 268 

Winslow V. Crocker 82 

V. Winslow 343 

Winslowe v. Tighe 87 

Winsmore v. Greenbank 259 

Winstell V. Ilehl 90 

Winston v. Newcoraen 237 

Winter v. Walter 120 



Section 

Wise V. Norton 313 

V. Wilson 462 

Wiser v. Blachly 366 

V. Lockwood 18 

Wishard v. Medaris 251 

Withers v. Hickman 869 

Witman'sApi)cal 388 

Witsell V. Charleston 129, 137 

Witty r. Marshall 235 
Wodell V. Coggeshall 251, 260, 267 a, 

268 

Wolfe V. Howes 474 

Wollaston i'. Tribe 174 

Wolsey V. Lake Shore R. 492 

Womack v. Austin 388 

V. Womack 446 

Wood, Re 324, 389, 439 

r. Adams 30 

V. Chetwood 53 

V. Corcoran 268 

V. Dovvnes 388 

V. Gale 835 

V. Gills 241 

V. O'Kelly 61 

V. Siiurtleff 53 

V. Stafford 318 

V. State 261 

V. Terry , 58, 97 

V. Truax 351, 444 

V. Washburn 368 

V. Wood 120, 122, 248 

Woodbeck v. Havens 162 

Woodbury v. Hammond 372, 377 

Woodcock V. Reed 164 

Woodin V. Burford 489 

Woodman r. Chapman 56 

Woodmansie v. Woodmansie 372 

Woodmeston v. Walker 103 

Woodruff r. Logan 419 

Woodruffe v. Cox 86 

Woodrum v. Kirkpatrick 124 

Woods r. Boots 347 

V. Mather 363 

V. Simmons 221 

Woodward, Ex parte 247 

V. Anderson 261 

?'. Barnes 63, 64, 65 

V. Seaver 150 

V. Wilson 151 

Woodward's Appeal 347 

Woodworth ?-. Spring 328 

Woolf V. Pemberton 296, 450 

Woolscombe, Ex parte 320 

Woolsey v. Brown 145 

Woolston's Appeal 188 

Worcester v. Eaton 440 

V. Marchant 237, 260, 273 

Word V. Vance 425 

Worrall v. Jacob 216 

Worrell's Appeal 353, 3b9 

Worth V. York 118, 11^ 



Ixxvi 



TABLE OF CASES. 



Worthington v. Cooke 

V. Curtis 

V. Dunkin 
Wortnian v. Price 
Worts V. Cubitt 
Wotton V. Hale 
Wray v. Cox 

V. West 

V. Wray 
Wren v. Gayden 

V. Kirton 
Wright V. Arnold 

V. Brown 

V. Donnell 

V. Dresser 

V. Fearis 

V. Germain 

V. Haskell 

V. Hicks 

V. Kerr 

V. Leonard 

V. Maiden & Melrose R. 

V. Naylor 

V. Sadler 

V. Steele 

V. Vanderplank 

V. Wilcox 

!!. Wright 
Wyatt V. Simpson 
Wych V. Packington 
Wyckoff t'. Boggs 

V. Hulse 
Wyman v. Adams 

V. Hooper 
Wyngert v. Norton 
Wynn v. Benbury 



Section 
150, 158 
253 
361 
155 
281 
90,95 

67 
457 

67 
324 
352 
389 
150, 457 
273 
146 
205 
433, 439 
475 
225 

75 
425 
429 
333 
193 
437 
271 
491 
191, 298 

89 
388 

30 
853 
414 
386 
464 
348, 384 



Co 



Wynn v. Bryce 
Wythe V. Smith 



Ximines v. Smith 



Yager v. Merkle 
Yale V. Dederer 
Yates V. Lyon 

V. Squires 
Yeager's Appeal 
Yeatman v. Yeatman 
Yeaton v. Yeatou 
Yerger v. Jones 
Yopst V. Yopst 
Young V. Fowler 

V. Graff 

V. Lorain 

V. IMcKee 

V. Paul 

V. Tarbell 

V. Young 
Younge v. Younge 
Yourse v. Norcross 



Z. 



Section 
334 
114 



190 



143, 145, 152 
404 
491 
872 

86 
183 
385 

81 
394 
137 
315 
488 

58 

350 

124, 317 

449 

96, 405 



Zimmerman v. Erhard 169 

Zouch V. Parsons 401, 405, 406, 409, 423 
Zulkee v. Wing 478 



THE DOMESTIC RELATIONS. 



THE DOMESTIC RELATIONS. 



PAET I. 

INTRODUCTORY CHAPTER. 



§ 1. Domestic Relations defined; Earlier Writers. — The law 
of the domestic relations is the law of the household or fam- 
ily, as distinguished from that of individuals in the external 
concerns of life. Five leading topics are embraced under 
this head : First, husband and wife. Second, parent and 
child. Third, guardian and ward. Fourth, infancy. Fifth, 
master and servant. These will be successively considered 
in the present treatise. 

Our general rule of classification is borrowed from Kent.^ 
But other writers on the domestic relations have analyzed 
their subject differently. Blackstone omits infancy as a topic 
distinct from parent and child, and hence makes but four 
divisions.'^ The same is true of Reeve.^ Such a method of 
treatment answered the purpose of these writers sufficiently ; 
but since their day the topic of guardian and ward has grown 
into importance, giving occasion to the discussion of many 
principles which apply as well to parent and child, for which 
reason it is found better to draw off from both what is peculiar 
to neither, and make the new heading of infancy. Bingham, 
on the other hand, wrote a treatise in which the only divi- 
sions observed were those of infancy and coverture.'* This 
plan would be found defective for a work like the present ; 

1 2 Kent Com. Lee. 26-32. 8 Reeve's Dom. Rel. 

2 1 Bl. Cora. Lee. 14-17. * Bing. Inf. & Gov. 

3 



§ 1 THE DOMESTIC RELATIONS. [PART I. 

for, in the first place, the subject of master and servant must 
be ignored altogether ; and, secondly, that of guardian and 
ward cannot receive the distinctive treatment it deserves. 
Besides, the very juxtaposition of two such words as " iu- 
fanc}' " and " coverture " suggests a similitude neither flat- 
tering to woman, nor in accordance with the present law of 
husband and wife, as will fully appear hereafter. Fraser, 
who writes for readers of the civil, or rather the Scotch, law, 
while otherwise classifying like Blackstone, adds the relation 
of master and apprentice to that of master and servant,^ in 
which respect his example is not to be imitated by common- 
law writers. Uj^on the whole, therefore, the rule of Kent 
seems to us the preferable one, as being concise, comprehen- 
sive, and well adapted to the present state of English and 
American law. 

It is curious to notice that all of these writers — and there 
are none else of standard authorit}' who profess to occup}- the 
whole subject — plunge at once into the law of their leading 
topics with nothing by way of general introduction ; nothing 
to indicate to the reader whither they propose leading him. 
Not one has attempted to draw the chart which shall deter- 
mine his legal bearings. Nor is the definition of the term 
"domestic relations " to be found in the books above specified. 
Indeed were it not for the title-page of Reeve's work, and a 
few casual passages in Kent's Commentaries, where the same 
words occur, one might ask how the expression " domestic 
relations " crept into general use among lawyers. Blackstone 
uses the terms " private economical relations,"' and " relations 
in private life ; " words which of themselves would seem to 
give a much wider scope to our subject.^ But Blackstone 
at all times manifests a strong predilection for independent 
analysis, with special reference, moreover, to the arrangement 
of his course of lectures ; and in this particular instance the 
context, as well as the classification, seems to show that 

1 Fras. Dom. TJel. (Scotcb). 2 vols, stanrling in the public relations of 

2 1 Bl. Com. Lee. 14. The writer marrislrates and people; and tlie word 
had just finislied discussing at length "private" marks the desired con- 
the rights and duties of persons as trast. 

4 



PART I.] INTRODUCTORY. § 2 

" domestic relations " was the topic in his mind. Fraser's 
complete title is " personal and domestic relations." Not- 
Avithstanding all this it is certain that "domestic relations" 
is now the well-sanctioned title of that law which erabi-aces 
the topics specified by us at the outset, as those who exam- 
ine the digests of reported eases and the codes of our leading 
States can testify. To legal precision in this respect, Reeve 
certainly contributed not a little by the clioice of a suitable 
title for his volume, so long the standard text-book for Eng- 
lish and American students. 

§ 2. Plan of Classification, &c. — Starting, then, with a defi- 
nition simple, natural, and well adapted to the materials in 
hand, we next ask what are the proper limitations of our 
subject? what should a text-book on the English and Amer- 
ican law of the domestic relations comprise ? (1.) As to three 
of our topics, — husband and wife, parent and child, and 
infancy, — the question is easil}^ answered. Their very names 
convey a distinct significance even to the mind of the unpro- 
fessional reader. Except it be in the meaning of the word 
" infancy," which the law applies to all persons not arrived 
at majority, but popular usage restricts to the period of help- 
lessness, all intelligent persons agree in the general use of 
the terms we have employed. And so strong are the moral 
obligations which attend marriage and the training of off- 
spring, so intimately blended with the welfare and happiness 
of mankind are the ties of wife and child, that scarcelj^ any 
one grows up without some knowledge of the general prin- 
ciples of law applicable to these topics, and particularly of 
such of the lights and duties as concern the person rather 
than the pro[)erty. For positive law but enforces the man- 
dates of the law of nature, and develops rather than creates 
a system. 

(2.) Yet even here it should be observed by the professional 
reader that the term " husband and wife " is acquiring at law 
a more limited and technical sense than formerl}'. The idea 
of marriage involves both the entrance into the relation and 
the relation itself; and akin to marriage celebration is the 
dissolution of marriage by divorce, or what we may term our 

5 



§ 2 THE DOMESTIC RELATIONS. [PART I. 

recognized legal exit from the relation. Hence marriage and 
divorce constitute an important topic by themselves ; and we 
find treatises which profess to deal with these alone. Mar- 
riage and divorce, moreover, have in England pertained until 
quite recently to the peculiar jurisdiction of ecclesiastical 
courts, constituting what is termed an ecclesiastical law.^ 
The rights and duties which grow out of the marriage rela- 
tion, on the other hand, still remain for separate discussion : 
the consequence of the celebration ; the effect of marriage 
upon the property of each ; the personal status of the par- 
ties, — in short, what new legal responsibilities are assumed, 
and what legal privileges are gained by the two persons who 
have once voluntarily united as husl)and and wife. It is to 
this latter subdivision, rather than the former, that the title 
of husband and wife seems at the present day to apply. 
Reeve devotes but a brief chapter to marriage and divorce. 
Kent separates the subdivisions completely, applying the 
title of husband and wife as above. Yet Blackstone, writing 
before either, had devoted two-thirds of his lecture on hus- 
band and wife to the treatment of marriage and divorce 
alone, and very briefly disposed of the rights and disabilities 
of the marriage union under the same general heading. The 
many and rapid changes to which the entire law of husband 
and wife has been latterly subjected ; the growth of divorce 
legislation on the one hand, and of property legislation for 
married women on the other, fully justifies a subdivision so 
important. We shall subordinate, then, the topic of mar- 
riage and divorce to that of the marriage status, following, 
in this respect, the modern legal usage ; at the same time 
noting that, if some special term could be coined to distin- 
guish the subdivision husband and wife from that general 
division which bears the same name, legal analysis would be 
more exact. 

(3.) As to guardian and ward, the limitations of our treatise 
are not so easily marked out. In respect of the domestic re- 
lations, the guardian is a sort of temporary parent, created by 

1 Burn, Eccl. Law ; 1 Bishop, Mar. & Div. 5th ed. §§ 48-G5. 

6 



PART I.] INTRODUCTORY. § 2 

the law, to supply to young children the place of a natural 
protector. But the term "guardian" is used rather indis- 
criminately in these days with reference to all who need pro- 
tection at the law. Thus we have guardians of insane persons; 
guardians of spendthrifts ; and even guardians of tiie poor. 
Blackstone treats of these last guardians under the head of 
public relations ; and certainly they do not fall within the 
clear scope of private or domestic relations. Yet the legal 
principles applicable to one class of guardians frequently ex- 
tend as well to all others ; and we shall hardly expect in 
these pages to trace with distinctness that shadowy line 
which separates the temporar}^ parent from the town officer; 
nor would the consulting lawyer expect us to do so. Again, 
a guardian's duties are chiefly with respect to property ; and 
herein they so nearly resemble those of testamentary trustees 
that one frequently finds himself gliding unconsciously from 
the law of the family into the law of trusts. 

(4.) With the last topic of the domestic relations — that of 
master and servant — the rule of classification becomes even 
more uncertain. If servants connected with the household 
were alone to be considered in a treatise upon the domestic 
relations, the modern cases would be simple and few ; but no 
writer has presumed to limit himself to such narrow bounds. 
In former centuries this relation had a marked significance. 
In these days we dislike to call an}^ man master. The recent 
abolition of slavery in the United States has wellnigh removed 
all traces of an institution known to the ancient Roman em- 
pire; elsewhere recognized as the common barbarian accom- 
paniment of barbarian triumphs ; and in spirit, if not in the 
letter, once fastened upon the common law, while the feudal 
system lasted. As one of the domestic relations, this topic of 
master and servant is of little present importance in England 
or America ; although it has doubtless an existence. In its 
analogies, however, or as a relation sub modo, master and ser- 
vant has features which the courts constantly regard. Appren- 
tices are, without much violation of principle, included under 
this head ; they are generall}^ bound out during minority and 
brought up in families. Clerks are not so readily confined 

7 



§ 3 THE DOMESTIC RELATIONS. [PAIIT I. 

within the circle of domestic relations as formerly ; and the 
same is to be said of factors, bailiffs, and stewards. The em- 
ployees of a corporation are frequently designated as servants; 
so are laborers generally. But it cannot be denied that master 
and servant is rather a repulsive title, and fast losing favor in 
this republican country ; that as one of the purely domestic 
relations it rarely attracts attention; and that in sounding its 
legal depths, one often loses sight of his landmarks, and finds 
himself drifting out into the more general subject of principal 
and agent. 

§ 3. General Characteristics of the La-w of Family. — Whether 
we consult the facts of history or the inspirations of human 
reason, the family may be justly pronounced the earliest of all 
social institutions. Man, in a state of nature and alone, was 
subject to no civil restrictions. He was independent of all 
laws, except those of God. But when man united with 
woman, both were brought under certain restraints for their 
mutual well-being. The propagation of offspring afforded 
the only means whereby society could hope to grow into a 
permanent and compact system. Hence the sexual cravings 
of nature were speedily brought under wholesome regula- 
tions ; as otherwise the human race must have perished in 
the cradle. Natural law, or the teachings of a Divine Prov- 
idence, supplied these regulations. Families preceded na- 
tions. These families at first lived under the paternal 
government of the person who was their patriarch or chief. 
But as they increased, they likewise divided ; their interests 
became conflicting, and hostilities arose. Hence when men 
came afterwards to unite for their common defence, they 
composed a national body, and agreed to be governed by 
the will of him or those on whom they had conferred author- 
ity. Thus did government originate. And government, for 
its legitimate purposes, placed restrictions upon the governed ; 
which restrictions thenceforth were to apply to individuals in 
both their family and social relations.^ But the law of the 
domestic relations is nevertheless older than that of civil 



1 See Burlamaqui Nat. Law, ch. iv. §§ G, 9. 

8 



PART I.] INTEODUCTOr.Y. § 4 

society. In fact, nations tliemselves are often regaidecl as so 
many families ; and the very name which is phiced at the 
head of this work, the legishitor constantly applies to the 
public concerns of his own country as contrasted with those 
of foreign governments. 

The supremacy of the law of family should not be forgotten. 
We come under the dominion of this law at the very moment 
of birth ; we thus continue for a certain period, whether we 
will or no. Long after infancy has ceased, the general obli- 
gations of parent and child may continue ; for these last 
through life. Again we subject ourselves by marriage to a 
law of family; this time to find our responsibilities still further 
enlarged. And although the voluntary act of two parties 
brings them within the law, they cannot voluntarily retreat 
when so minded. To an unusual extent, therefore, is the law 
of family above, and independent of, the individual. Society 
provides the home; public policy fashions the system; and 
it remains for each one of us to accustom himself to rules 
which are, and must be, arbitrarj^ 

So is the law of family universal in its adaptation. It deals 
directly with the individual. Its provisions are for man and 
woman ; not for corporations or business firms. The ties of 
wife and child are for all classes and conditions ; neither rank, 
wealth, nor social influence weighs heavily in the scales. To 
ever}^ one public law assigns a home or domicile ; and this 
domicile determines not only the status, capacities, and rights 
of the person, but also his title to personal property. There 
is the political domicile, which limits the exercise of political 
rights. There is the forensic domicile, upon which is founded 
the jurisdiction of the courts. There is the civil domicile, 
which is acquired by residence and continuance in a certain 
place. The place of birth determines the domicile in the first 
instance ; and one continues until another is properly chosen. 
The domicile of the wife follows that of the husband ; the 
domicile of the infant may be changed by the parent. Thus 
does the law of domicile conform to the law of nature, 

§ 4. Law of Husband and Wife now in a Transition State ; 
Various Property Schemes stated. — The most interesting and 



§ 5 THE DOMESTIC RELATIONS. [PART I. 

important of the domestic relations is that of husband and 
wife. The law of England and the United States, on this 
topic, is now undergoing a remarkable change ; and so un- 
settled are its principles at the present time, witli reference 
to the rights and obligations of the married pair, that the 
writer has felt constrained to depart somewhat from the usual 
plan of law treatises, adopting what might be termed a con- 
secutive or histoiical arrangement of his materials ; since 
otherwise the subject would furnish to the reader's mind lit- 
tle else than a series of unreconciled contradictions. To show 
clearly why the later cases conflict with the earlier will at 
least aid the future legislator and jurist in their efforts to 
place the law of husband and wife upon a firm and just basis; 
and meanwhile afford to the practising lawyer all the assist- 
ance which he can reasonably expect. 

This confused state of the law of husband and wife is 
exhibited in a contest still going on between two opposing 
schemes for adjusting the property rights of the married 
parties. The one is the common-law scheme ; the other re- 
sembles that of the civil law. The former is at the basis of 
our jurisprudence, English and American. Tlie latter has 
had a powerful influence in modern times, moulding the doc-^ 
trines of the equity tribunals and shaping recent legislation. 
Let us examine these schemes separately, and afterwards a 
third or intermediate scheme, known as that of communit3^ 

§5. Common-Law Property Scheme. — (1.) The common- 
law scheme makes unity in the marriage relation its cardinal 
point. But to secure this unity the law starts with the 
assumption that the wife's legal existence becomes suspended 
or extinguished during the marriage state ; it sacrifices her 
property interests, and places her almost absolutely within 
her husband's keeping, so far as her civil rights are con- 
cerned. Her fortunes pass by marriage into her husband's 
hands, for temporary or permanent enjoyment, as the case 
may be ; she cannot earn for herself, nor, in general, contract, 
sue, or be sued in her own right ; and this, because she is not 
in legal contemplation a person. The husband loses little or 
nothing of his own independence by marriage ; but in order 
10 



PART I.] INTRODUCTORY. § 6 

to distribute the matrimonial burdens with some approach to 
equalit}', the hiw com[)els him to pay debts on his wife's 
account, which he never in fact contracted, not only where 
she is held to be his agent by legal implication, but whenever 
it happens that she has brought him by marriage outstanding 
debts without the corresponding means of paying them. 
Husband and wife take certain interests in one another's 
lands, such as curtesy and dower, which l)ecome consummate 
upon survivorship. In general, their property rights are 
summarily adjusted by the law with reference rather to pre- 
cision than principle. On the whole, however, the advan- 
tages are with the husband ; and he is permitted to lord it 
over the wife with a somewhat despotic sway ; as the old 
title of this subject — bar-on and feme — plainly indicates. 
The witty observation is not wholly inappropriate that, in the 
eye of the common law, husband and wife are one person, 
and that one is the husband.^ 

§ 6. Civil-Law Property Scheme. — (2.) The civil-law 
scheme paj^s little regard to the theoretic unity of a married 
pair. It looks rather to the personal independence of both 
husband and wife. Each is to be protected in the enjoyment 
of property rights. In the most polished ages of Roman juris- 
prudence we find, therefore, that husband and wife were 
regarded as distinct persons, with separate rights, and capable 
of holding distinct and separate estates. The wife was com- 
paratively free from all civil disabilities. She was alone respon- 
sible for her own debts ; she was competent to sue and be sued 
on her own contracts ; nor could the husband subject her or 
her property to any liability for his debts or engagements. ^ 

The more minute details of the common-law scheme of 
husband and wife belong to the main portion of this volume, 
and need not here be anticipated. Not so, however, with the 
civil-law scheme ; and we proceed to elaborate it solnewhat 
further. In the earlier period of RomTan law the marital 
power of the husband was as absolute as the patria potestas. 
But before the time of the Emperor Justinian it had assumed 

1 See post, Part II., as to coverture - 1 Burge, Col. & For. Laws, 202, 
doctrine. 263. 

11 



§ 6 THE DOMESTIC PELATIOXS. [PART I. 

the aspect already noticed ; in wliirh it is to be distinguished 
from all other codes. The eommunio bonorum, which is to he 
found in so many modern systems of jurisprudence whose 
l)asis is the Roman law, treats the wife's separate property 
and separate rights as exceptional. The peculiarities of 
the civil law in this respect may, perhaps, be referred to 
the disuse into which formal rites of marriage had fallen. 
Formal marriage gave to husband and wife a communit}'^ of 
interest in each other's property. But marriage per usum, or 
by cohabitation as man and wife, which became universally 
prevalent in later times, did not alter the status of the 
female : she still remained subject to her father's power. 
Hence parties united in a marriage per iisum acquired no 
general interest in one another's property, but only an inci- 
dental interest in certain parts of it. The wife brought her 
dos ; the husband his antidos ; in all other property each 
retained the rights of owners unaffected by their relation of 
husband and wife. The dos and anti-dos were somewhat in 
the nature of mutual gifts in consideration of mairiage. 
Every species of property which might be subsequently ac- 
quired, as well as that owned at the time of marriage, could 
be the subject of dotal gift. The father, or other paternal 
ancestor of the bride, was bound to furnish the dos, and the 
husband could compel them afterwards, if they failed to do 
so ; the amount or value being regulated according to the 
means of the ancestor and the dignity of the husband. This 
pecuniary consideration appears to have influenced the later 
marriages to a very considerable extent. And while the hus- 
band had no concern with the wife's extra-dotal property, — 
since this she could manage and alienate free from all control 
or interference, — over her dotal property he acquired a 
dominion which was determinable on the dissolution of the 
marriage, unless he had become the purchaser at an estimated 
value. As incidental to this dominion he had the usufruct to 
himself, he might sue his wife or any one else who obstructed 
his free enjoyment, and he could alienate the personal prop- 
erty at pleasure. But he could not charge the real estate 
unless a purchaser ; and upon his death the wife's dotal 
12 



PART 1.] INTHODUCTORY. § 7 

property belonged to her, or, if she had not been emancipated, 
to her father ; and to secure its restitution after the dissolu- 
tion of marriage, the wife had a tacit lien upon her husband's 
property. Of the anti-do$, or donatio -propter nuptias, not so 
much is known ; but this appears to have generally corre- 
sponded with the dos ; it was lestored by the wife upon the 
dissolution of marriage ; and was regarded as her usufructu- 
hvy property' in like manner. It was not necessarily of the 
same value or amount with the wife's dos. Over his general 
property the husband retained the sole and absolute power of 
alienation, and his wife liad no interest in it, nor coidd she 
interfere with his right of management.^ 

But the civil law allowed agreements to be made by which 
these rights might be regulated and varied at pleasure. And 
by their stipulations the married parties might so enlarge 
their respective interests as to provide for rights to the survi- 
vor.2 These agreements were not unlike the antenuptial 
settlements so well known to our modern equity courts, which 
we shall consider in due course hereafter. 

§ 7. Community Property Scheme. — (3.) The communio 
bono7'u?n, or community system, relates to marital property, in 
which respect it occupies an intermediate position between 
the civil and common law schemes. The communio honorum 
may have been part of the Roman law at an earlier period of 
its history, but it had ceased to exist long before the compila- 
tion of the Digest; though parties might by their nuptial 
agreement adopt it.^ This constitutes so prominent a feature 
of the codes of France, Spain, and other countries of modern 
Europe, whence it has likewise found its way to Louisiana, 
Florida, Texas, California, and other adjacent States, once 
subject to French and Spanish dominion, and erected, in fact, 
out of territor}^ acquired during the present century upon 
the Mississippi, the Gulf of Mexico, and the Pacific Ocean, 
that it deserves a brief notice. 

The relation of husband and. wife is regarded by these 

1 1 Burge Col. & For. Laws, 202; 3 1 Burge Col. & For. Laws, 202 ; ih 
ib. 263 et seq. 263 et. seq. 

2 1 Burge Col. & For. Laws, 273. 

13 



§ 7 THE DOMESTIC RELATIONS. [PAET I. 

codes as a species of partnershijD, the property of which, like 
thut of any other partnership, is primarily liable for the pa}'- 
iiient of debts. This partnership or community applies to all 
property acquired during marriage ; and it is the well-settled 
rule that the debts of the partnership have priority of claim 
to satisfaction out of the community estate. Sometimes the 
community is universal, comprising not only property ac- 
quired during coverture, but all which belonged to the hus- 
band and wife before or at their marriajre.^ It is evident, 
therefore, that the provisions of such codes ma}^ differ widely 
in different States or countries. The principle which distin- 
guishes the community from both the civil and common law- 
schemes is, however, clear; namely, that husband and wife 
should have no property apart from one another. 

Under modern European codes this law of community em- 
braces profits, income, earnings, and all property which, from 
its nature and the interest of the owner, is the subject of his 
uncontrolled and absolute alienation ; but certain gifts made 
between husband and wife in contemplation of marriage are 
of course properly excluded.^ Whether antenuptial debts 
are to be paid from the common propert}^ as well as debts 
contracted while the relation of husband and wife continues, 
would seem to depend upon the extent of the communio hono- 
rum, as including property brought by each as capital stock 
to the marriage, or only such property as they acquire after- 
wards.2 The codes of modern Europe recognize no general 
capacity of the wife to contract, sue, and be sued, as at the 
later civil law. On the contrary, the husband becomes, by 
his marriage, the curator of his wife. He has, therefore, the 
sole administration and management of her property, and 
that of the community : and she is entirely excluded in every 
case in which her acts cannot be referred to an authority, 
express or implied, from her husband.* Hence, too, all debts 

^ 1 Burge Col. & For. Laws, 277 nity; but the Spanish law included 

et seq. botli real and personal estate. ChilJ- 

2 1 Burge Col. & For. Laws, 281, ress v. Cutter, 16 Mo. 24. 
282. By tlie French law only the per- s 1 Burge, "294. 

sonal estate entered into the coinmu- * Ih. 296, 301. 

14 



PAET I.] I LNTRODUCTORY. [§ 7 

and charges are incurred by the husband. The community- 
ceases on the termination of marriage by mutual separation 
or the death of either spouse.^ And the various codes pro- 
vide for the rights of the survivor on tlie legal dissolution of 
the community by death. 

The reader may readily trace the influence of the commu- 
nity system upon the jurisprudence of Louisiana and the 
other States to which we have referred, whose annexation 
was subsequent to the adoption of our Federal Constitution, 
by examining their judicial reports. The Civil Code of Loui- 
siana, as amended and promulgated in 1824, pronounced that 
the partnership or community of acquets or gains arising dur- 
ing coverture should exist in every marriage where there was 
no stipulation to the contrary. This was a legal consequence 
of marriage under tlie Spanish law.^ The statutes of Texas, 
Florida, Missouri, California, and other neighboring States, 
are characterized by similar features. But all of these laws 
have been modified by settlers bringing with them the princi- 
ples of the common law. So, too, the doctrines of separate 
estate, revived in modern jurisprudence, are introduced into 
the legislation of these as other American States.^ The 
American community doctrine, as we may term it, is that all 
property purchased or acquired during marriage, by or in the 
name of either husband or wife, or both, including the prod- 
uce of reciprocal industry and labor, shall be deemed to 
belong prima facie to the community, and be held liable for 
the community marriage debts accordingly.^ But it will be 
perceived that, in our American codes, community, as an 

1 Ih. 303, 305. Ann. 583. Lnnd owned by a spouse at 

2 Art. 2312, 2369, 2370; 2 Kent tlie time of marriage does not fall into 
Com. 183, n. tlie community. Lake u. Lake, 52 Cal. 

3 Texas Digest, Paschal, " Marital 428 ; Eslinger v. Eslinger, 47 Cal. 62. 
Rights;" Cal. Civil Code, "Husband The wife's earnings, unless given her 
& Wife;" Parker's Cal. Dig. " Hus- by the husband, and likewise property 
band and Wife ; " Walker v. Howard, bought with such earnings, must be- 
34 Tex. 478; Caulk v. Picou, 23 La. long to the commuuit^v. Johnson v. 
Ann. 277. And see Forbes v. Moore, Burford, 39 Tex. 242. But see Fisk v. 
32 Tex. 195. Flores, 43 Tex. .340. For the Ameri- 

* Louisiana Civil Code, §§ 2369- can community doctrine in detail, see 
2372; Succession of Pianchet, 29 La. Schouler's Husband & Wife, §§ 339- 
Ann. 520; Tally v. Heffner, 29 La. 345. 

15. 



§ 7 THE DOMESTIC RELATIONS. [PART I. 

incident to marriage property, is only a presumption, which 
may be overcome in any instance by proof that the property 
was acquired as the separate estate of either the husband or 
wife. Tljis community rule, moreover, as it is evident, does 
not apply to the property which either husband or wife 
brought into the marriage ; such property, by the codes, 
being distinctly kept to each spouse apart as his or her sepa- 
rate property.^ And, besides, it is now usually provided by 
legislation that property acquired during marriage, " by gift, 
bequest, devise, or descent," with the rents, issues, and profits 
thereof, shall be separate, not common property. The ten- 
dency, then, in our States, where the law of community 
still exists — though all have not proceeded in legislation to 
the same length — is to limit rather than extend its applica- 
tion. The wife has a tacit mortgage for her separate prop- 
erty, so far as the law may have placed it in her husband's 
control ; also upon the community property from the time it 
went into his hands ; and, moreover, she may, on surviving 
her husband, renounce the partnership or community, in 
which case she takes back all her effects, whether dotal, 
extra-dotal, hereditary, or proper.^ 

On the whole, there is in the doctrine of community much 
that is fair and reasonable ; but in the practical workings of 
this sj'stem it is found rather complicated and perplexing, 
and hence unsatisfactory; while in no part of the United 
States can it be said to exist at this day in full force, since 
husband and wife are left pretty free to contract for the 
separate enjoyment of property, and so exclude the legal 
presumption of community altogether ; ^ and moreover, the 

1 La. Code, §§ 2316, 2369, 2371 ; « Sclioul. Hiis & Wife, §§ 341, 342. 

Pinard's Succession, 30 La. Ann 167; And see ib., §§ 343, 344, as lo tlie wife's 

McAfee v. Robertson, 43 Tex. 591 ; separate property under tliose codes ; 

Webb's Estate, Myrick's Prob. 93 ; viz., dotal and extra-dotal or paraplier- 

Sclimeltz V. Garey, 49 Tex. 49. But nal. 

the wife slionld not mingle her sepa- ^ See Packard v. Arellanos, 17 Cal. 

rate funds with those of tlie comnm- 525; Waul v. Kirkman, 25 Miss. 009; 

nity ill making a purchase, as of her Succession of McLean, 12 La. Ann. 222; 

separate estate. Reid v. Rochereau, 2 Jones v. Jones, 15 Tex. 143; Ex pm-te 

Woods, 151. See Schouler Has. & Melbourn, L. R. 6 Ch. 64; La. Civil 

Wife, 341. Code, §§ 23G9-2405 ; 1 Burge Col. & 

16 



PART I.] INTRODUCTORY. § 9 

constant tendency of our southwestern States is to remodel 
their institutions upon the Anglo-American basis, common 
to the original States and those of the Ohio valley. 

§ 8. The Recent Married Women's Acts. — What are famil- 
iarly known as the " married women's acts," the product for 
the most part of our American legislation since 1848, and 
more recently engrafted upon the code of Great Britain, aim 
to secure to the wife the independent control of her own 
property, and the right to contract, sue, and be sued, without 
her husband, under reasonable limitations. These acts, there- 
fore, substitute in a great measure the civil for the common 
law. It may be laid down that the common law, in denying 
to the wife the rights of ownership in property acquired by 
gift, purchase, bequest, or otherwise, did her injustice, and 
that a radical change became necessary ; and this is shown, 
not only in the legislation of our States, but by the fact that 
the equity tribunals gradually moulded the unwritten law of 
England so as to secure like results. 

All this separate property legislation, as well as the equity 
doctrines pertaining to the subject in England and the several 
United States, will be duly set forth in these pages hereafter, 
so far as the chaotic condition of the law at this transition 
period will permit.^ And the modification of the respective 
property rights of a married pair by marriage contracts or 
settlements will also be considered.^ 

§ 9. Marriage and Marital Influence. — In the connubial 
joys to which every age and nation bears witness, the vast 
majority of this globe's inhabitants must have participated 
from one era to another, with a certain voluntary adjustment 
of the reciprocal burdens, such as relieved both husband and 
wife of a sense of bondage to one another. And thus have 
the inequalities, the hardships of marriage codes, proved less 
in practice than in literal expression. For whatever the 

For. Laws, 277 et secj, where the law of i See coverture doctrine, modified 

community as it was about half a cen- by equity and modern statutes, Part 

tury ago is fully set fortli ; and the 11., post. 

learned note to 2 Kent Com. 188. See 2 Marriage Settlements, post. 

also Schouler Hus. & Wife, §§ 335- 

345. 

2 17 



§ 10 THE DOMESTIC RELATIONS. [PART I. 

apparent severity of the law, human nature or love's divine 
instinct works in one uniform direction, namely, towards 
uniting the souls once brought into the arcana of married life, 
in an equally honorable companionship. Woman's weakness 
has been her strongest weapon ; where her influence could 
not overflow, it permeated ; and if her life has been, legally 
speaking, at her husband's mercy, her constant study to please 
has kept him generally merciful. She has not been superior 
to her race and epoch, but on the whole as well protected, as 
Avell advanced, in her day, as those of the other sex. Except 
for this, the wife's lot must have been miserable indeed, even 
under the most civilized institutions ever established. Codes 
and the experience of nations in this respect show strange 
inconsistencies : laws at one time degrading to woman, and 
yet marital happiness ; laws at another elevating her indepen- 
dence to the utmost, and yet marital infelicities, lust, and 
bestiality.^ 

§ 10. General Conclusions as to the Law of Husband and 
"Wife. — The conclusions to which this writer's investigation 
upon the general subject of husband and wife conducts him 
are these. Marriage is a relation divinely instituted for the 
mutual comfort, well-being, and happiness of both man and 
woman, for the proper nurture and maintenance of offspring, 
and for the education in turn of the whole human race. Its 
application to society being universal, the fundamental rights 
and duties involved in this relation are recognized by some- 

1 Soe examination of ancient mar- the bonds of family affection became 
riage systems, including that of the weakened. When the empire sank in- 
Roman republic, in Schoul. Has. & to utter dissolution, woman possessed a 
Wife, §§ 4-6. large share of cultivation and personal 

Wliether, in setting at naught that freedom ; yet she had touched the low- 
identity of interests which is essential est depths of social degradation, 
to domestic happiness, the later Roman This degradation it became the mis- 
scheme was fatally defective, or the sion of the Christian Church to correct 
conjugal decay which ensued was due during the lapse of the dark ages, by 
to causes more latent, need not here be restoring the dignity of marriage, — 
discussed. Certain it is, however, that e.xalting it, in fact, to a sacrament, and 
wide-spread incestuous intercourse, li- almost utterly prohibiting its dissolu- 
centiousness most loathsome and un- tion. From so strict a view of mar- 
natural, followed in the wake of mari- riage, however, Protestant countries in 
tal independence ; and, as the interests modern times dissent. lb. 
of husband and wife began to diverge, 

18 



PART I.] INTRODUCTORY. § 10 

thing akin to instinct, and often designated by that name, so 
as to require by no means an intellectual insight ; intellect, 
in fact, impairing often that devotedness of affection which is 
the essential ingredient and charm of the relation. Indeed 
the rudest savages understand how to bear and bring up 
healthy offspring. Legal and political systems are accretions 
based upon marriage and property ; but in the family rather 
than individualism we find the incentive to accumulation, and 
in the home the primary school of the virtues, private and 
public. At the same time, marriage affords necessarily a dis- 
cipline to both sexes ; sexual indulgence is mutually permitted 
under healthy restraints ; woman's condition becomes neces- 
sarily one of comparative subjection ; man is tamed by her 
gentleness and the helplessness of tender offspring, and for 
their sake he puts a clieck upon his baser appetites, and con- 
centrates his affection upon the home he has founded. Such 
is the conjugal union in what we term a state of nature. 
And now, while man frames the laws of that union, as he 
always does in primitive society, he regards himself as the 
rightful head of the family and lord of his spouse ; and, some- 
what indulgent of his own errant passions, he makes the 
chastity of his wife the one indispensable condition of their 
joint companionship. She, on her part, more easily chaste 
than himself, views with pain whatever embraces he bestows 
upon others of her sex. Her personal influence over him, 
always strong, enlarges its scope as the state advances in arts 
and refinement, until at length woman, as the maiden, the 
wife, and the matron, becomes intellectually cultivated, a 
recognized social power in the community. Yearning now 
for a wider influence and equal conditions, her attention, 
strongly concentrated upon the marriage relation, seeks to 
make the marriage terms equal : first, she desires her prop- 
erty secured to her own use, whether married or single, and, 
indignant at the inadequate remedies afforded under the law 
for wifely wrongs, demands the right of dismissing an unworthy 
husband at pleasure ; moreover, as a mother, she claims 
that the children shall be hers not less than the father's. 
These first inroads are easily made ; for what she demands is 

19 



§ 11 THE DOMESTIC RELATIONS. [PART I. 

theoretically just. But just at this point the peril of female 
influence is developed. Woman rarely comprehends the 
violence of man's unbridled appetite, or perceives clearly that, 
after all, in the moral purity and sweetness of her own sex, 
such as excites man's devotion, and makes home attractive, is 
the fundamental safeguard of life and her own most powerful 
lever in society, besides the surest means of keeping men 
themselves continent. She forgets, too, that, to protect that 
purity and maintain her moral elevation, a certain seclusion is 
needful ; which seclusion is highly favorable to those domes- 
tic duties which nature assigns her as her own. More is 
granted woman. The bond of marriage being loosened, pos- 
terity degenerates, society goes headlong; and the flood-gates 
of licentiousness once fully opened, the hand must be strong 
that can close them again. 

Happiness, we may admit, differs with the capacity, like 
the great and small glass equally full, which Dr. Johnson men- 
tions. Yet marriage is suited to all capacities ; and men and 
women are the complement of one another in all ages, neither 
being greatly the intellectual superior of the other at any 
epoch, but the man always having necessarily the advantage 
in physical strength and the power to rule. The best ordered 
marriage union for any community is that in which each sex 
accepts its natural place, where woman is neither the slave 
nor the rival of man, but his intelligent helpmate ; where a 
sound progeny is brought up under healthy home influences. 
The worst is that where conjugal and parental affection fails, 
and all is discord and unrest, a sea without a safe harbor. 
To the household, stability may prove more essential than 
freedom, and woman's status more dignified or more de- 
graded, as the case may be, than the law assumes to fix it. 

§ 11. Remaining Topics of the Domestic Relations; Modern 
Changes. — Of the remaining topics to be discussed in the 
present treatise, little need be said by way of general preface. 
These have felt the softening influences of modern civiliza- 
tion. The common-law doctrine of Parent and Child finds 
its most important modifications in the gradual admission of 
the mother to something like an equal share of parental 
20 



PART I.] INTEODUCTOEY. § 11 

authority ; in the growth of popular systems of education for 
the young ; in the enlarged opportunities of earning a liveli- 
hood afforded to the children of idle and dissolute parents ; 
and. in the lessened misfortunes of bastard, offspring. Guar- 
dian and Ward, a relation of little importance up to Black- 
stone's day, has rapidly developed since into a permanent 
and well-regulated sj'stem under tlie supervision of the chan- 
cery courts, and, in this country, of the tribunals also with 
probate jurisdiction ; and much of the old learning on this 
branch of the law has become rubbish for the antiquary. 
The law of Infancy remains comparatively unchanged. Of 
Master and Servant, we have spoken. 

We are now to investigate in detail the law of these several 
topics. But first the reader is reminded that the o£&ce of the 
text-writer is to inform rather than invent ; to be accurate 
rather than original ; to chronicle the decisions of others, 
not his own desires ; to illumine paths already trodden ; to 
criticise, if need be, yet always fairly and in furtherance of 
the ends of justice ; to analyze, classify, and arrange ; from a 
mass of discordant material to extract all that is useful, sep- 
arating the good from the bad, rejecting whatever is obsolete, 
searching at all times for guiding principles ; and, in fine, to 
emblazon that long list of judicial precedents through which 
our Anglo-Saxon freedom " broadens slowly down." 

21 



§ 13 THE DOMESTIC RELATIONS. [PAET II. 



PART II. 

HUSBAND AND WIFE. 
CHAPTER L 

MAEEIAGB. 

§ 12. Definition of Marriage. — The word "marriage" big- 
nifies, in the first instance, that act by which a man and 
woman unite for life, with the intent to discharge towards 
society and one another those duties which result from the 
relation of husband and wife. The act of union having been 
once accomplished, the word comes afterwards to denote the 
relation itself. 

§ 13. Marriage more than a Civil Contract. — It has been 
frequently said in the courts of this country that marriage is 
nothinof more than a civil contract. That it is a contract is 
doubtless true to a certain extent, since the law always pre- 
sumes two parties of competent understanding who enter into 
a mutual agreement, which becomes executed, as it were, by 
the act of marriage. But this agreement differs essentially 
from all othei^s. This contract of the parties is simply to 
enter into a certain status or relation. The rights and obli- 
gations of that status are fixed by society in accordance with 
principles of natural law, and are beyond and above the 
parties themselves. They may make settlements and regu- 
late the property rights of each other ; but they cannot mod- 
ify the terms upon which they are to live together, nor 
superadd to the relation a single condition. Being once 
bound they are bound for ever. Mutual consent, as in all 
22 



CHAP. I.] MARRIAGE. § 13 

contracts, brings them together ; but mutual consent cannot 
part them. Death alone dissolves the tie, — unless the legis- 
lature, in the exercise of a rightful authority, interposes by 
general or special ordinance to pronounce a solemn divorce ; 
and this it should do only when the grossly immoral conduct 
of one contracting party brings unmerited shame upon the 
other, disgraces an innocent offspring, and inflicts a wound 
upon the community. So in other respects the law of mar- 
riage differs from that of ordinary contracts. For, as concerns 
the parties themselves, mental capacity is not the only test of 
fitness, but physical capacity likewise, — a new element for 
consideration, no less important than the other. Again, 
the encumbrance of an existing union operates here as a 
special disqualification. Blood relationship is another. So 
too an infant's capacity is treated on peculiar principles, as 
far as the marriage contract is concerned, for he can marry 
young and be bound by his marriage. Third parties cannot 
attack a marriage because of its injury to their own interests. 
International law relaxes its usual requirements in favor of 
marriage. And finally the formal celebration now prevalent, 
both in England and America, is something peculiar to the 
marriage contract ; and in its performance we see but the 
faintest analogy to the execution and dehvery of a sealed 
instrument. 

The earnestness with which so many of our American pro- 
genitors insisted upon the contract view of marriage may be 
ascribed in part to their hatred of the Papacy and ritualism, 
and their determination to escape the conclusion that mar- 
riage was a sacrament. By no people have the marriage vows 
been more sacredly performed than by ours down to a period, 
at all events, comparatively recent. That a State legislature 
is not precluded from regulating the marriage institution 
under any constitutional interdiction of acts impairing the 
obligation of contracts, or interfering with private rights and 
immunities, has frequently been asserted.^ And as to the 

1 Maguire v. Maguire, 7 Dana, 181 ; Ottenheimer, 6 Oreg. 231 ; Adams v. 
Green v. State, 58 Ala. 190 ; Frasher Palmer, 51 Me. 480. 
V. State, 3 Tex. App. 263; Rugh v. 

23 



§ 14 THE DOMESTIC RELATIONS. [PART 11. 

private regulation of their property rights, by the contract of 
parties to a marriage, that, of course, is to be distinguished 
from their marriage, which may take place without any prop- 
erty regulation whatever. ^ 

We are then to consider marriage not as a contract in 
the ordinary acceptation of the term ; but as a contract sui 
generis, if, indeed, it be a contract at all ; as an agreement to 
enter into a solemn relation which imposes its own terms. 
On the one hand discarding the unwarranted dogmas of 
the church of Rome by which marriage is elevated to the 
character of a sacrament, on the other we repudiate that dry 
definition with which the lawgiver or jurist sometimes seeks 
to impose upon the natural instincts of mankind. We adopt 
such views as the distinguished Lord Robertson held.^ And 
Judge Story observes of marriage : " It appears to me some- 
thing more than a mere contract. It is rather to be deemed 
an institution of society founded upon the consent and con- 
tract of the parties ; and in this view it has some peculiarities 
in its nature, character, operation, and extent of obligation, 
different from what belongs to ordinary contracts." ^ So Era- 
ser, while defining marriage as a contract, adds in forcible 
language : " Unlike other contracts, it is one instituted by 
God himself, and has its foundation in the law of nature. It 
is the parent, not the child, of civil society." * And we may 
add that a recent American text-writer, of high repute upon 
the subject, not only pronounces for this doctrine, after a 
careful examination of all the authorities, but ascribes the 
chief embarrassment of American tribunals, in questions 
arising under the conflict of marriage and divorce laws, to 
the custom of applying the rules of ordinary contracts to the 
marriage relation.^ 

§ 14. Marriages void and voidable. — A distinction is made 
at law between void and voidable marriages. This distinc- 

1 Lord Stowell, in Lindo v. Belisario, * 1 Eras. Dora. Rel. 87. 

1 Hag. Con. 216 ; 1 Bish. Mar. & Div. 5 i Bish. Mar. & Div. 5th ed. § 18. 

5th ed. § 14. And see Dickson ;;. Dickson, 1 Yerg. 

2 Duntze v. Levett, Ferg. 68, 385, 110, per Catron, J. ; Ditson v. Ditson, 
397 ; 3 Eng. Ec. 360, 495, 502, 4 R. I. 87, per Ames, C. J. 

8 Story Confl. Laws, § 108 n. 

24 



CHAP. I.] MARRIAGE. § 14 

tion, which appears to have originated in a conflict between 
the English ecclesiastical and common-law courts, was first 
announced in a statute passed during the reign of Henry 
VIII. ; and it is also to be found in succeeding marriage and 
divorce acts down to the present day. The distinction of 
void and voidable applies not to the legal consequences of an 
imperfect marriage, once formally dissolved, but to the status 
of the parties and their offspring before such dissolution. A 
void marriage is a mere nullity, and its validity may be im- 
peached in any court, whether the question arise directly or 
collaterally, and whether the parties be living or dead. But 
a voidable marriage is valid for all civil purposes until a com- 
petent tribunal has pronounced the sentence of nullity, upon 
direct proceedings instituted for the purpose of setting the 
marriage aside. When once set aside, the marriage is treated 
as void ah initio ; but unless the suit for nullity reaches its 
conclusion during the lifetime of both parties, all proceedings 
fall to the ground, and both survivor and offspring stand as 
well as though the union had been lawful from its inception.^ 
Hence we see that, while a void marriage makes cohabitation 
at all times unlawful, and bastardizes the issue, a voidable 
marriage protects intercourse between the parties for the time 
being, furnishes the usual incidents of survivorship, such as 
curtesy and dower, and encourages the propagation of chil- 
dren. But the moment the sentence of nullity is pronounced, 
the shield of the law falls, the incidents vanish, and innocent 
offspring are exposed to the world as bastards ; and herein is 
the greatest hardship of a voidable marriage. 

The old rule is that civil disabilities, such as idiocy and 
fraud, render a marriage void ; while the canonical impedi- 
ments, such as consanguinity and impotence, make it void- 
able only. This test was never a clear one, and it has 
become of little practical consequence at the present day. 
Statutes both in England and America have greatly modified 
the ancient law of valid marriages, and it can onl}^ be affirmed 
in general terms that the legislative tendency is to make mar- 

1 1 St. 32 Hen. VIII. c. 38. See 1 Bish. Mar. & Div. 5th ed. § 108 ct seq. 

25 



§ 15 THE DOMESTIC RELATIONS. [PAKT n. 

riages voidable rather than void, wherever the impediment is 
such as might not have been readily known to both parties 
before marriage ; and where public policy does not rise supe- 
rior to all considerations of private utility. Modern civihza- 
tion strongly condemns the harsh doctrine of ah initio 
sentences of nullity ; and such sentences have now in general 
a prospective force only, in order that rights already vested 
may remain unimpaired, and, still more, that children may 
not suffer for the follies of their parents.^ 

§ 15. Essentials of Marriage. — We shall consider in this 
chapter that act by which parties unite in matrimony, — for 
to this the term " marriage " is most frequently applied. It 
may be stated generally that, in order to constitute a perfect 
union, the contracting parties should be two persons of the 
opposite sexes, without disqualification of blood or condition, 
both mentally competent and physically fit to discharge the 
duties of the relation, neither of them being bound by a pre- 
vious nuptial tie, neither of them withholding a free assent ; 
and the expression of their mutual assent should be substan- 
tially in accordance with the prescribed forms of law. These 
are the essentials of marriage. Hence we are to treat of the 
following topics in connection with the essentials of a valid 
marriage : first, the disqualification of blood ; second, the 
disqualification of civil condition ; third, mental capacity ; 
fourth, physical capacity ; fifth, the disqualification of in- 
fancy, which in reality is based upon united considerations of 
mental and physical unfitness ; sixth, prior marriage undis- 
solved ; seventh, force, fraud, and error ; eighth, the formal 
celebration of a marriage, under which last head may be also 
included the consent of parents or guardians, not to be 
deemed an essential, except in conformity with the require- 
ments of the marriage celebration acts. These essentials all 

1 Shelf. Mar. & Div. 154 ; 76. 479- v. Goodrich, 41 Vt. 47 ; Divorce, jtost. 

484 ; 1 Bl. Com. 434 ; 1 Bish. Mar. & Held contra as to tlie marriage of a ne- 

Div. 5th ed. §§ 105-120. See Stat. 5 gro and white person. Carter v. Mont- 

& 6 Will. IV. c. 54 ; 2 N. Y. Rev. Sts. gomery, 2 Tenn. Ch. 216. And see 

139, § 6 ; Mass. Gen. Sts. c. 106, § 4 ; post as to impotence or physical in- 

Harrison v. State, 22 Md. 468 ; Bowers capacity. 
V. Bowers, 10 Eich. Eq. 551 ; Pingree 

26 



CHAP. I.] MARRIAGE. § 16 

have reference solely to the time, place, and circumstances of 
entering into the marriage relation, and not to any subse- 
quent incapacity of either party. 

§ 16. Disqualification of Blood; Consanguinity and Affinity. — 
And, firsts as to the disqualification of blood. On no point 
have writers of all ages and countries been more united than 
in the conviction that nature abhors, as vile and unclean, all 
sexual intercourse between persons of near relationship. But 
on few subjects have they differed more widely as in the ap- 
plication of this conviction. Among Eastern nations, since 
the days of the patriarchs, practices have prevailed which to 
Christian nations and in days of civilized refinement, seem 
shocking and strange. The difficulty then is, not in discov- 
ering that there is some prohibition by God's law, but in 
ascertaining how far that prohibition extends. This difficulty 
is manifested in our language by the use of two terms, — con- 
sanguinity and affinity ; one of which covers the terra firma 
of incestuous marriages, the other offers debatable ground. 
The disqualification of consanguinity applies to marriages 
between blood relations in the lineal or ascending and de- 
scending lines. There can be but one opinion concerning 
the union of relations as near as brother and sister. The 
limit of prohibition among remote collateral kindred has, 
however, been differently assigned in different countries. 
The English canonical rule is that of the Jewish law. The 
Greeks and Romans recognized like principles, though with 
various modifications and alterations of opinion. But the 
church of the Middle Ages found in the institution of mar- 
riage, once placed among the sacraments, a most powerful 
lever of social influence. The English ecclesiastical courts 
made use of this disqualification, extending it to the seventh 
degree of canonical reckoning in some cases, and beyond all 
reasonable bounds.-^ So intolerable became this oppression, 
that a statute passed in the time of Henry VIII. forbade 
these courts thenceforth to draw in question marriages with- 

' In some Roman Catholic coun- tuous. See Sottomayor v. De Barros, 
tries, — e. .7. Portu<?al, — the marriage L. R. 2 P. D. 81 ; L. R. 3 P. D. 1. 
of first cousins is still pronounced inces- 

27 



§ 16 THE DOMESTIC EELATIONS. [PART II. 

out the Levitical degree, " not prohibited by God's law." ^ 
Under this statute, which is still essentially in force in Eng- 
land, the impediment has been treated as applicable to the 
whole ascending and descending line, and further, as extend- 
ing to the third degree of the civil reckoning inclusive ; or in 
other words, so as to prohibit all marriages nearer than first 
cousins. Archbishop Parker's table of degrees, which recog- 
nizes these limits, has been, since 1563, the standard adopted 
in the English ecclesiastical courts.^ The statute prohibition 
includes legitimate as well as illegitimate children, and half- 
blood kindred equally with those of the whole blood.^ Its 
principles have been recognized in the United States.* 

But the English law goes even further, and places affinity 
on the same footing as consanguinity as an impediment. 
Affinity is the relationship which arises from marriage be- 
tween a husband and his wife's kindred, and vice versa. It 
is shown that while the marriage of persons allied by blood 
produces offspring feeble in body and tending to insanity, 
that of persons connected by affinity leads to no such result ; 
and further, that consanguinity has been everywhere recog- 

1 Stat. 32 Hen. VIII. c. 38. See 1 Bish. Mar. & Div. 5th ed. §§ 106, 107 ; 2 Kent 
Com. 82, 83 ; Shelf. Mar. & Div. 163 et seq. ; Wing v. Taylor, 2 Swab. & T. 278, 
295. 

2 1 Bish. Mar. & Div. .5th ed. § 318; Butler v. Gastrill, Gilb. Ch. 156. Accord- 
ing to this table, — 

A man may not marry his A woman may not marry her 

1. Grandmother. 1. Grandfather. 

2. Grandfather's wife. 2. Grandmother's husband. 

3. Wife's grandmother. 3. Husband's grandfather. 

4. Father's sister. 4. Father's brother. 

5. Motlier's sister. 5. Mother's brother. 

6. Father's brother's wife. 6. Father's sister's husband. 

7. Mother's brother's wife. 7. Motlier's sister's husband. 

8. Wife's father's sister. 8. Husband's father's brother. 

9. Wife's mother's sister. 9. Husband's mother's brother. 

10. Motiier. 10. Father. 

11. Stepmother. 11. Step-father. 

12. Wife's mother. 12. Husband's father. 

13. Daughter. 13. Son. 

14. Wife's daughter. 14. Husband's son. 

3 1 Bish. Mar. & Div. 5th ed. §§ 315, 317 ; Reg. v. Brighton, 1 B. & S. 
447. 

■* Marriage between an uncle and niece has been treated as incestuous. Har- 
rison V. State, 22 Md. 468; Bowers v. Bowers, 10 Rich. Eq. 551. 

28 



CHAP. I.] MAEEIAGE. § 17 

nized as an impediment, but not affinity. The worst that 
can probably be said of the latter is, that it leads to confusion 
of domestic rights and duties. No question has been dis- 
cussed with more earnestness in both England and America, 
with less positive result, than one which turns upon this very 
distinction ; namely, whether a man may marry his deceased 
wife's sister. This question has received a favorable response 
in Vermont.^ But in England such marriages are still deemed 
incestuous, and within the prohibition of God's law, and 
the House of Lords resists all legislative change in this 
respect.^ 

Marriages within the forbidden degrees of consanguinity 
were formerly only voidable in English law ; but by modern 
statutes they have been made null and void. In this coun- 
try they are generally pronounced void by statute (that is to 
say, void from the time the sentence is pronounced), ^ and 
the offending parties are liable to imprisonment. But with 
regard to marriages among relatives by affinity, the rule is 
not so stringent as in England.^ 

§ 17. Disqualification of Civil Condition ; Race, Color, Social 
Rank, Religion. — Second^ as to the disqualification of civil con- 
dition. Race, color, and social rank do not appear to consti- 
tute an impediment to marriage at the common law, nor is any 

1 Blodget V. Brinsmaid, 9 Vt. 27; Ex parte Naden, L. R. 9 Ch. G70. And 
and see 1 Bish. Mar. & Div. 5th ed. see Commonwealtli v. Ferryman, 2 
§ 314; Paddock v. Wells, 2 Barb. Ch. Leigh, 717, as to the Virginia statute 
331. Collamer J., in Blodget v. Brins- on this point. 

maid, makes this ingenious distinction : ^ Tiiat is to say, not void ah initio. 

" The relationship by consanguinity is, See supra, § 14 ; Harrison v. State, 22 

in its nature, incapable of dissolution ; Md. 468.' And see Bowers v. Bowers, 

but the relationship by affinity ceases 10 Rich. Eq. 551 ; Parker's Appeal, 8 

with the dissolution of the marriage Wright, 309, where an incestuous niar- 

which produced it. Therefore, though riage is treated as simply voidable, 
a man is, by affinity, brother to his * 2 Kent Com. 83, 84, and notes ; 1 

wife's sister, yet, upon the death of Bish. Mar. & Div. 5th ed. §§312-320; 

his wife, he may lawfully marry her Regina v. Chadwick, 12 Jur. 174 ; Sut- 

sister." ton v. Warren, 10 Met. 451 ; Bonham 

2 Hill V. Good, Vaugh. 302 ; Harris v. Badgley, 2 Gilm. G22 ; Wightman ?•. 
V. Hicks, 2 Salk. 548; Shelf. Mar. & Wightman, 4 Johns. Ch. 343; Butler 
Div. pp. 172, 178 ; 2 Kent Com. 84 v. Gastrin, Gilb. Ch. 156 ; Burgess v. 
note, and authorities cited ; Reg. v. Burgess, 1 Hag. Con. 884 ; Blackmore 
Chadwick, 12 Jur. 174; 11 Q. B. 173 ; v. Brider, 2 Phillim. 359. 

Pawson V. Brown, 41 L. T. n. s. 339 ; 

29 



§ 18 THE DOMESTIC RELATIONS. [PART II. 

such impediment now recognized in England.^ But by local 
statutes in some of the United States, intermarriage has long 
been discouraged between persons of the negro, Indian, and 
white races.^ With the recent extinction of slavery, many of 
these laws have passed into oblivion, together with such as 
refused to allow to persons held in bondage, and negroes gen- 
erally, the rights of husband and wife. The thirteenth article 
of amendment to the Constitution gives Congress power to 
enforce the abolition of slavery " by appropriate legislation." 
As to persons formerly slaves, there are now acts of Congress 
which legitimate their past cohabitation, and enable them to 
drop the fetters of concubinage. And the manifest tendency 
of the day is towards removing all legal impediments of rank 
and condition, leaving individual tastes and social manners 
to impose the only restrictions of this nature.^ 

§ 18. Mental Capacity of Parties to a Marriage. — Thirds as 
to mental capacity. No one can contract a valid marriage 
unless capable, at the time, of giving an intelligent consent. 
Hence the marriages of idiots, lunatics, and all others who 
have not the use of their understanding, are now treated as 
null ; though the rule was formerly otherwise, from, perhaps, 
too great regard to the sanctity of the institution in the Eng- 
lish ecclesiastical courts.* What degree of insanity will amount 
to disqualification is not easily determined ; so varied are the 
manifestations of mental disorder at the present day, and so 

1 1 Bish. Mar & Div. 5th efl. §§ 308- riages of former slaves, &c.,see Schoul. 
311 ; 1 Burge Col. & For. Laws, 138. Hus. & Wife, § 16. 

2 See Bailey v. Fiske, 34 Me. 77 ; As to statutes formerly forbidding 
State V. Hooper, 5 Ire. 201 ; State v. marriage between a Roman Catholic 
Brady, 9 Humph. 74 ; Barksliire v. and Protestant, see Commonwealth v 
State, 7 Ind. 389; 1 Bish. Mar & Div. Kenney, 120 Mass. 387 ; Philadelphia 
5th ed. §§ 154-163; Schoul. Hus. & i'. Williamson, 10 Phila. 176. The 
Wife, § 16. One drop less than one statute 19 Geo. II. ch. 13, to this effect, 
fourth negro blood saves from the taint has partial reference to the solemniza- 
in Virginia. McPherson v. Common- tion of marriage by a Popish priest, 
wealth, 28 Gratt. 939. These are disabilities imposed by a 

* Act July 25, 1866, c. 240; Act Protestant parliament, it is worth ob- 

JuneG, 18G6, c. 106, §14. And see 15th serving. 

Amendment U. S. Const. ; Stewart v. < See Lord Stowell in Turner v. 

Munchandler, 2 Bush (Ky.), 278 ; State Meyers, 1 Hag. Con. 414 , 1 Bish. Mar. 

V. Harris, 63 N. C. 1. For Southern & Div. 5th ed. § 125. 
statutes which now legalize the mar- 

30 



CHAP. I.] MARRIAGE. § 18 

gradually does mere feebleness of intellect shade off into 
hopeless idiocy. Certain it is that a person may enter into a 
valid marriage, notwithstanding he has a mental delusion on 
certain subjects, is eccentric in his habits, or is possessed of a 
morbid temperament, provided he displays soundness in other 
respects and can manage his own affairs with ordinary pru- 
dence and skill.i Every case stands on its own merits ; but 
the usual test applied in the courts is that of fitness for the 
general transactions of life , for, it is argued, if a man is 
incapable of entering into other contracts, neither can he con- 
tract marriage.^ This test is sufficiently precise for most pur- 
poses. Yet we apprehend the real issue is whether the man 
is capable of entering understandingly into the relation of 
marriage ; for natural impulses are so strong that a man may 
know well the contract he assumes by the act of marriage, 
while he is not equally fit to enter into other engagements. 
There are two questions, however : first, whether the party 
understands the marriage contract ; second, whether he is fit 
to perform understandingly the momentous obligations which 
that contract imposes ; and both elements might well enter 
into the consideration of each case. " If any contract more 
than another," observes Lord Penzance in a recent English 
case, " is capable of being invalidated on the ground of the 
insanity of either of the contracting parties, it should be the 
contract of marriage, — an act by which the parties bind 
their property and their persons for the rest of their 
lives." 3 

Marriage contracted during a lucid interval is at law 
deemed valid ; ^ but the English statute provides that such 
marriages are void when a commission of lunacy has once 

1 2 Kent Com. 76 ; Browning v. McElroy's Case, 6 W. & S. 451. See 
Reane, 2 Pliillim. 69; 1 Bish. Mar. & 1 Bish. Mar. & Div. §128; Ex parte 
Div. 5th eJ. §§ 124-142 ; Turner v. Glen, 4 Des. 546. 

Meyers, 1 Hag. Con. 414 ; 4 Eng. Ec. » Hancock v. Peaty, L. R. 1 P. & D. 

440'; 1 Bl. Com. 438, 439. 335, 341. 

2 Mudway v. Croft, 3 Curt. Ec. 671 ; * Shelf. Mar. & Div. 197 ; 1 Bish. 
Anon., 4 Pick. 32 ; Cole v. Cole, 5 Mar. & Div. § 130 ; Banker v. Banker, 
Sneed, 57 ; Atkinson v. Medford, 46 63 N. Y. 409 ; Parker v. Parker, 6 Eng. 
Me. 510; Ward v. Dulaney, 23 Miss. Ec. 165; Smith v. Smith, 47 Miss. 
410; Elzey v. Elzev, 1 Houst. 808; 211. 

31 



§ 18 THE DOMESTIC EELATIONS. [PAET II. 

been taken out and remains unrevoked.^ Similar provisions 
are to be found in some of our States. On the other hand, 
marriage contracted by a person habitually sane, during tem- 
porary insanity, is unquestionably void,- as of course would 
be any marriage contracted by one at the time permanently 
insane.^ 

Upon the principle of temporary insanity, drunkenness inca- 
pacitates, if carried to the excess of delirium tremens ; though 
not, it would appear, if the party intoxicated retains sufficient 
reason to know what he is doing.^ Drunkenness was formerly 
held a bad plea ; for the common law permitted no one to 
stultify himself; but the modern rule is more reasonable. 
Some cases require that fraud or unfair advantage should be 
shown ; yet the better opinion is that even this is unneces- 
sary.^ Deaf and dumb persons were formerly classed as 
idiots ; this notion, however, is exploded. They may now 
contract marriage by signs.® Total blindness, or mere deaf- 
ness, of course constitutes no incapacity. In general, we may 
add, that the disqualification of insanity is often considered 
in connection with fraud or undue influence exercised by or 
on behalf of the other contracting party, over a weak intel- 
lect, for the sake of a fortune, a title, or some other worldly 
advantage.'' 

Suits of nullity, brought to ascertain the facts of insanity, 
are favored by law both in England and America ; and mod- 
ern legislation discountenances all collateral disputes involv- 



1 Stat. 15 Geo. II. c. 30, (1742), not 1 Bish. Mar. & Div. 5th ed. § 131 ; Gore 
part of the common law in this country, v. Gibson, 13 M «& W. 623; 2 Kent 

2 Legeyt v. O'Brien, Milward, 325 ; Com. 451, and authorities cited ; Lord 
Parker v. Parker, 6 Eng. Ec. 165. Ellenborough, in Pitt ('. Sniitli, 3 Camp. 

3 See Lord Penzance in Hancock v. 83; Scott v. Paquet, L. R. 1 P. C. 552. 
Peaty, L. R. 1 P. & D. 335 ; Banker v. ^ See 1 Bish. Mar. & Div. 5th ed. 
Banker, 63 N. Y. 409; McAdam v. §§ 131, 132, and conflicting cases cited; 
Walker, 1 Dow, 148 ; 1 Bish. Mar. & Elzey v. Elzey, 1 Houst. 308 ; Steuart 
Div. § 130 ; Smith v. Smith, 47 Miss. v. Robertson, 2 H. L. Sc. 494. 

211. Cf. Waymire v. Jetmore, 22 Ohio 6 i Bish. Mar. & Div. 5th ed. § 133, 

St. 271. and cases cited ; 1 Eras. Dom. Rel. 48; 

And as to development of the mal- Dickenson v. Blisset, 1 Dickens, 268 ; 

ady about the time of the ceremony, Harrod i>. Harrod, 1 Kay & Johns. 4. 
see Schoul. Hus. & Wife, § 19. ^ Fraud as an element of disqualifi- 

* Clement v. Mattison, 3 Rich. 93 ; cation will be considered post. 

32 



CHAP, r.] MARRIAGE. § 19 

ing questions so painful and perplexing. " Though marriage 
with an idiot or lunatic be absolutely void, and no sentence 
of avoidance be absolutely necessary, " says Chancellor Kent, 
" yet, as well for the sake of the good order of society as for 
the peace of mind of all persons concerned, it is expedient 
that the nullity of the marriage should be ascertained and de- 
clared by the decree of a court of competent jurisdiction." ' 
In many States this is now the only course to be pursued, 
such marriages being treated as voidable and not void ; and 
the insane spouse dying before proceedings to dissolve the 
marriage are begun, the survivor takes all the benefits of a 
valid marriage accordingly .^ 

§ 19. Physical Capacity of Parties to Marriage; Impotence, 
&c. — Fourth. The question of physical capacity involves an 
investigation of facts even more painful and humiliating than 
that of mental capacity. Yet as marriage is instituted, in 
part at least, for the indulgence of natural cravings and with 
a view to propagate the human family, sound morality de- 
mands that the proper means shall not be wanting. Our law 
demands that, at all events, the sexual desire may be fully 
gratified. Where impotence exists, therefore, there can be 
no valid marriage. By this is meant simply that the sexual 
organization of both parties shall be complete. But mere 
barrenness or incapacity of conception constitutes no legal 
incapacity in England and the United States, nor can a 
physical defect which does not interfere with copulation ; nor 
indeed any disability which is curable, even though not actu- 
ally cured, unless the party disabled unreasonably refuses to 
submit to the proper remedies.^ Such refusal, however, puts 

1 2 Kent Com. 76. 8 i Bish. Mar. & Div. §§ 321-340, 

2 1 Bish. Mar. & Div. 5th ed. §§ 136- and cases cited ; 1 Eras. Doni. Rel. 53 ; 
142; Goshen v. Richmond, 4 Allen, B. v. B., 28 E. L. & Eq. 95; 1 Bl. Com. 
458 ; Hamaker y. Hamaker, 18 111. 137 ; 440, n., by Chitty and others; Ayl. 
Williamson v. Williams, 3 Jones Eq. Parer. 227 , Devanbagh v. Devanbagh, 
446 ; Wiser v. Lockwood, 42 Vt. 720 ; 6 Paige, 554 ; Essex i-. Essex, 2 Howell 
Brown v. Westbrook, 27 Ga. 102; St. Tr. 786; Briggs r. Morgan, 3 Phil- 
Stuckey r. Mathes, 31 N. Y. Supr. lim. 325. For a case where the disa- 
461. As to bringing such suits, see, bility was possibly curable, see G. u. G., 
further, 1 Bish. Mar. & Div. §§ 139- L. R. 2 P. & D. 287. 

142 ; Schoul. Hus. & Wife, § 21. 

3 33 



§ 20 THE DOMESTIC RELATIONS. [PART U. 

the disabled spouse clearly in the wrong. ^ The refusal of 
carnal intercourse by a healthy spouse is quite a different 
matter, and gives rise to other inquiries under the head of 
divorce ; ^ nor certainly can physical incapacity arising from 
some cause subsequent to marriage be referred to the present 
subject, the question being as to incapacity at the date of 
marriafje.^ 

The reader will find Dr. Lushington's opinion in the lead- 
ing case of Deane v. Aveling^ sufficiently suggestive as to the 
extent of malformation which invalidates a marriage on the 
ground of physical incapacity. It will be observed that this 
case establishes a principle which later cases do not under- 
mine, namely, that it is capacity for fulfilling the conditions 
of copulation, and not of procreation, that our own law re- 
gards. We may add that, with the rapid progress of medical 
science during the present century, cases of absolute and in- 
curable impotence are happily diminishing in number.^ 

§ 20. Disqualification of Infancy. — Fifth. Infancy may be 
an impediment to marriage ; but only so far, on principle, as 
the marrying party, by reason of imperfect mental and physi- 
cal development, may be brought within the reason of the 
last two rules. Hence we find that infancy is not a bar to 
marriage to the same extent as in ordinary contracts ; since 
minors cannot repudiate their choice of husband or wife on 
reaching majority. Not that marriage calls for less discrimi- 
nation, for it carries with it consequences far beyond all other 
contracts, involving property rights of the gravest import ; 
but because public policy must protect the marriage institu- 
tion against the reckless imprudence of individuals. A cer- 
tain period is established, called the age of consent, which in 
England is fixed at fourteen for males and twelve for females, 

1 H. V. P., L. R. 3 P. & D. 126. 1 P. & D. 31 ; T. v. D., L. R. 1 P. & D. 

2 See, further, Sclioul. Hus. & Wife, 127 ; Carll v. Prince, L. R. 1 Ex. 246. 
§ 22; Cowles v. Cowles, 112 Mass. 298. But with modern facilities, including 

3 See Morrell v. Morreil, 24 N. Y, tlie right of parties to testify in tiieir 
Supr. 324. own suits, sucli cases appear to be on 

* 1 Robertson, 279, 298. And see the increase in the courts of Great 

recent case of U. v. J., L. R. 1 P. & D. Britain. See 1 Bish. § 331 ; Schoul. 

460. Hus. & Wife, § 23, as to sentences of 

^ See recent cases : T. v. M., L. R. nullity in such cases. 

34 



CHAP. I.] MARRIAGE. § 20 

a rule adopted from the Roman law, but which, in this coun- 
try, varies all the way from fourteen to eighteen for males 
and twelve to sixteen for females, according to local statutes ; 
differences of climate and physical temperament contributing, 
doubtless, to make the rule of nature, in this respect, a fluc- 
tuating one.^ Marriages without the age of consent are as 
binding as those of adults ; marriages within such age may be 
avoided by either party on reaching the period tixed by law. 
And even though one of the parties was of suitable age and 
the other too 3^oung, at the time of marriage, yet the former, 
it appears, may disaffirm as well as the latter.^ Herein is 
observed a departure from that principle of law, that an in- 
fant may avoid his contract while the adult remains bound ; 
it is a concession which the law makes in favor of mutuality 
in the marriage compacts. Marriages celebrated before both 
parties have reached the age of consent may be disaffirmed in 
season, either with or without a judicial sentence. When 
the age of consent is reached, no new ceremony is requisite 
to complete the marriage at the common law ; but election 
to afl&rm will then be inferred from circumstances, such as 
continued intercourse, and even slight acts may suffice to 
show the intention of the parties. If they then choose to 
remain husband and wife, they are bound for ever. Dis- 
affirmance, on the other hand, may be either with or 
without a judicial sentence." Marriage within the age of 
consent seems therefore to be neither strictly void nor 
strictly voidable, but rather inchoate and imperfect ; ^ with, 

1 See 2 Kent Com. 79, notes, show- that a party of competent age may dis- 
ing the periods fixed in different States affirm equally with the party incompe- 
as the age of consent. In the old States tent. Peo|)le r. Slack, 15 Mich. 193. 
the common-law rule generally pre- ^ 1 Bish. Mar. & Div. § 150. 

vails. In Ohio, Indiana, and other * Co. Litt. 33 a ; 2 Kent Com. 78, 

Western States, the age of consent is 79 ; 1 Bish. Mar. & Div. 5th ed. §§ 143- 

raised to eighteen for males, and four- 153, and cases cited; 1 Bl. Com. 436; 

teen for females. See also Bennett v. 1 Fras. Dom. Rel. 42 ; Parton v. Her- 

Sniith, 21 Barb. 439, as to the power vey, 1 Gray, 119 ; Fitzpatrick v. Fitz- 

of the New York courts to annul mar- patrick, 6 Nev. 63. See Shafher v. 

riages with persons under age. State, 20 Ohio, 1, contra, Goodwin 

2 Co. Litt. 79, and Harg. n. 45 ; 1 v. Thompson, 2 Iowa, 329 ; Aymar v. 
East P. C. 468; 1 Bish. Mar. & Div. Eoflf, 3 Johns. Ch. 49, as to the invalid- 
5th ed. § 149. But it is not certain ity of such marriages unless confirmed 

35 



§ 21 THE DOMESTIC EELATIONS. [PAKT II. 

however, a reservation by the ecclesiastical law as to mar- 
riage with an infant below seven years, which is treated as 
altogether null.^ 

§ 21. Disqualification of Prior Marriage Undissolved; Poly- 
gamy; Bigamy. — Sixth, as to the impediment of prior mar- 
riage undissolved. It is a well-established rule in civilized 
countries that marriage between parties, one of whom is 
bound hj an existing marriage tie, is not only void, but sub- 
jects the offenders to criminal prosecution.^ Polygamy, or 
bigamy as it is often termed, — since the common law of Eng- 
land could scarcely conceive of such conjunctions carried 
beyond a double marriage, — is discarded by all Christian 
communities. It is tolerated, though not sanctioned, in cer- 
tain territory of the United States. The fundamental doc- 
trine of Christian marriage is that no length of separation can 
dissolve the union, so long as both parties are actually living, 
even though lapse of time should raise a reasonable supposi- 
tion of death. But to render the second marriage void at 
law, the first should have been valid in all respects.^ Some 
of the harsher features of the old law have been softened in 
our own legislation ; and statutes are not uncommon which 
possibly extend facilities for divorce from the old relation, 
and in any event protect the offspring of a new marriage con- 
tracted erroneously, but in good faith, by parties who had 
reason to believe a former spouse dead.^ So, too, polygamy 
in fact is relieved of its penal consequences as concerns par- 
ties not guilty of polygamy in intention ; but a certain period 
must elapse — usually seven years — before death can be pre- 
sumed from one's mere continuous absence without being 
heard from. Such was one of the provisions in the English 
statute passed to make bigamy a civil offence, in the reign of 

by cohabitation after reaching the stat- cited ; Shelf. Mar. &> Div. 224 ; Hyde 

utory age. Local statutes affect this v. Hyde, L. K. 1 P. & D. 130. 

whole subject. ^ Bruce v. Burke, 2 Add. Ec. 471 ; 

1 2 Burn. Ec. Law, 434; 1 Bish. 2 Eng. Ec. 381; Reg. v. Cliadwick, 12 
Mar. & Div. § 147. Jur. 174 ; Patterson v. Gaines, 6 How. 

2 Cro. Eh'z. 858; 1 Salk. 121; 2 (U. S.) 550. 

Kent Com. 79, and notes ; 1 Bish. Mar. ■« See 2 N. Y. Rev. Stat. p. 139, §§ 6, 
& Div. §§ 296-303, and authorities 7 ; Mass. Gen. Sts. c. 107, §§ 4, 30. 

36 



CHAP. I.] MARRIAGE. § 22 

James I.,^ which also exempted from punishment for bigamy- 
persons remarried, during the lifetime of the former spouse, 
after a divorce, sentence of nullity, or disaffirmance on reach- 
ing age of consent. Similar statutes for the punishment of 
bigamy, with similar reservations, are enacted in this country ; 
but in England and the United States some defects of the 
original legislation are now cured, and divorce from bed and 
board would not exempt an offender from prosecution.^ Polyg- 
amy, with such exceptions, remains an indictable offence. 

One of its less obvious evils — though not the least im- 
portant when polygamy is regarded as a legalized institution 
in a free country — is that the patriarchal principle which it 
introduces is thoroughly hostile to free institutions ; this fact 
was pointed out many years ago by one of our best writers on 
political ethics.^ 

Nor is a new marriage entered into by one spouse in good 
faith, and in full but erroneous belief that the other spouse 
is dead, valid even after the lapse of the statutory absence ; 
such parties are not free to marry again, but only relieved of 
the worst consequences.* 

§ 22. Same Subject ; Impediments foUoTving Divorce. — Under 
this same head may be considered a disqualification intro- 
duced into some parts of this country by legislative enact- 

1 Stat. 1 Jac. I. c. 11, 1604. See Schoul. Hus. & Wife, § 25 ; also " Big- 
Queen V. Lumley, L. R. 1 C. C. 196; amy " in Bishop or Wliarton on Crirui- 
Queen v. Curgerwen, L. R. 1 C. C. 1. nal Law. 

^ In New York the period of ab- * Glass v. Glass, 114 Mass. 56-3, and 

sence is five years ; in Ohio, three cases cited ; Williamson v. Parisien, 

years; in Massachusetts, seven years, 1 Johns. Ch. 389; Miles r. Chilton,! 

but with a special relaxation of the Robertson, G84 ; Spicer v. Spicer, 16 

penalty. Still further, see 2 Kent Com. Abb. Pr. n. s. 112 ; 1 Bish. Mar. & Div. 

79, and notes. See also Stats. 9 Geo. § 299. Such marriage, under Massa- 

IV. c. 31 ; 24 & 25 Vict. c. 100 ; 1 Bish. chusetts statutes, may be annulled by a 

§ 297. Legitimating statutes are to be sentence containing (in order to make 

found in numerous States on behalf of children begotten before thecommence- 

the offspring of innocent marriages of ment of the suit legitimate) the state- 

this kind. 1 Bish. § .^Ol ; cases wfra. ment that it was contracted in good 

3 2 Lieber Pol. Ethics, 9, cited in faith and with the full belief of the par- 
note to 2 Kent Com. 81. ties that the absent spouse was dead 

As to prosecutions for bigamy, see Glass v. Glass, supra. Lawful compe- 

Kopke V. People, 43 Mich. 41 ; Reeves tence to marry again results, liowever, 

I'. Reeves, 54 111. 3-32 ; Queen v. Allen, imder some local statutes, from such 

L. R. 1 C C. 367, and other cases cited absence. Strode i'. Strode, 3 Bush, 227. 

37 



§ 23 THE DOMESTIC IlELATIONS. [PART II. 

ments ; namely, the impediment which follows divorce.^ A 
divorce a vinculo should on general principles leave both 
parties free to marry again. But such is not always the case. 
Thus, in Kentucky, the person injured may not marry again 
before the expiration of two years from the decree of disso- 
lution.2 And in several States the guilty party is prohibited 
from marrying again during the lifetime of the innocent 
spouse divorced, — a provision of law seemingly more judi- 
cious to apply m terrorem by way of prevention than as a 
suitable method of punishment.^ In Scotland there is a 
peculiar, but not unreasonable law, which forbids the guilty 
party after divorce from marrying the particeps erimmis ; this 
was framed evidently to defeat collusive practices between 
persons desiring to put away an outstanding obstacle to their 
own union.^ 

§ 23. Force, Fraud, and Error, in Marriage. — Seventh. All 
marriages procured by force or fraud, or involving palpable 
error, are void ; for here the element of mutual consent is 
wanting, so essential to every contract.^ The law treats a 
matrimonial union of this kind as absolutely void ah initio^ 
and permits its validity to be questioned in any court ; at the 
option, however, of the injured party, who may elect to abide 
by the consequences when left free to give or withhold assent. 
Force implies a physical constraint of the will ; fraud, some 
deception practised, whereby an unnatural state of the will 
is brought about.^ Cases of palpable error, which are very 
rare, usually contain one or both of these ingredients. 

What amount of force is suflBcient to invalidate a marriage 
is a question of circumstances. Evidently the same test could 
not apply to the mature and the immature, to the strong and 
the weak, to man and to woman. The general rule is that 

1 1 Bish. Mar. & Div, 5th ed. §§ 304- Morris, 2 Hag. Con. 423; 4 Eng. Ec. 
307; Schoul. Hus & Wife, § 26. 575; Countess of Portsmouth v. Earl 

2 Cox V. Combs, 8 B. Monr. 2.31. of Portsmouth, 1 Hag. Ec. 355 ; 3 Eng. 

3 See Parke v. Barron, 20 Ga. 702 ; Ec. 154; Scott r. Shufeldt, 5 Paige, 43; 
Clark V. Cassidy, 62 Ga. 407 ; Kinnier Dalrymplc v. Dalrymple, 2 Hag. Con. 
r. Kinnier, 53 Barb. 454. 54, 104; 4 Eng. Ec* 485; Keyes v. 

* 1 Eras. Dom. Rel. 82. Keyes, 2 Fost. 553. 

5 2 Kent Com. 76, 77; 1 Bish. Mar. 6 1 Eras. Dom. Bel. 2?A. 
& Div. 5th ed. §§ 164-215 ; Harford v. 

38 



CHAP. I.] MARRIAGE. § 23 

such amount of force as might naturally serve to overcome 
one's free volition and inspire terror will render the marriage 
null.^ And where the party employing force sustains a 
superior relation of influence, or a post of confidence afford- 
ing him opportunities which he chooses to abuse, this circum- 
stance carries great weight. Thus in Harford v, Morria, 
where one of the guardians of a young and timid school-girl, 
having great influence and authority over her, took her to a 
foreign country, hurried her from place to place, and then 
married her without her free consent, the marriage was set 
aside ; ^ and similar consequences attended more recently the 
marriage of a young school-girl to her father's coachman, who 
pursued his scheme while taking her out to ride.^ 

So marriage by compulsion is procured when one under 
illegal arrest is forced to marry ; and so probably, though the 
arrest was legal, if malicious circumstances are manifest.^ 
But if a single man under legal arrest, by advice of the officer 
or magistrate, marries the woman whom he has seduced or 
got with bastard offspring, in order to escape prosecution, the 
law will favor a presumption of honest repentance on his 
part, and hold him bound ;^ substantial justice being thereby 
done to the utmost, and the lesser scandal to society per- 
mitted in order to avert the greater. 

As to fraud, in order to vitiate a marriage, it should go to 
the very essence of the contract. But what constitutes this 
essence ? The marriage relation is not to be disturbed for 

1 Shelf. Mar. & Div. 213; 1 Bish. murrer. Here the man claimed that 
Mar. & Div. 5th ed. § 211. the woman's brother seized him on the 

2 2 Hag. Con. 423; 4 Eng. Ec. 675. highway, and forced him to marry her, 

3 Lyndon v. Lyndon, 69 111. 43. and that as soon as the duress was over 

4 Keg. V. Orgill, 9 Car. & P. 80 ; he escaped ; also that the woman had a 
Soule V. Bonney, 37 Me. 128 ; Collins v. child three months afterwards. Duress 
Collins, 2 Brews. (Pa.) 515; Barton i;. was claimed by the husband in Vroom 
Morris, 15 Ohio, 408; Benton v. Ben- v. Marsli, 29 N.J. Eq. 15, but the court 
ton, 1 Day, 111; 1 Bish. Mar. & Div. allowed alimony /^em/eHte/ite to the wife, 
5th ed. § 212. she denying the charge. 

A man is sometimes forced into a ^ Jackson v. Winne, 7 Wend. 47 ; 

marriage which ought to be annulled. Sickles v. Carson, 26 N. J. Eq. 440 ; 

See Bassett v. Bassett, 9 Bush, 696. In Honnett v. Honnett, 33 Ark. 156 ; State 

Willard v. Willard, 6 Baxter, 297, be- v. Davis, 79 N. C. 603 ; Johns v. Johns, 

fore testimony was taken, an allegation 44 Tex. 40; Williams v. State, 44 Ala. 

of duress was sustained against de- 24. 

89 



§ 23 THE DOMESTIC RELATIONS. [PART II. 

trifles, nor can the cumbrous machinery of the courts be 
brought to bear upon impalpable things. The law, it has 
been well observed, makes no provision for the relief of a 
blind credulity, however it may have been produced.^ Fraud- 
ulent misrepresentations of one party as to birth, social posi- 
tion, fortune, good health, and temperament, cannot there- 
fore vitiate the contract. Caveat emptor is the harsh but 
necessary maxim of the law. Love, however indispensable in 
an sesthetic sense, is by no means a legal essential to marriage ; 
simply because it cannot be weighed in the scales of justice. 
So, too, all such matters are peculiarly within the knowledge 
of the parties themselves, and they are put upon reasonable 
inquiry. 

Not even does the concealment of previous unchaste and 
immoral behavior in general vitiate a marriage ; for although 
this seems to strike into the essence of the contract, yet pub- 
lic policy pronounces otherwise, and opens marriage as the 
gateway to repentance and virtue.^ If the profligate con- 
tinue a profligate after marriage, the divorce laws afford a 
means of escape to the deluded victim. Still, as this doc- 
trine seems to bear hard upon innocent persons marrying in 
good faith and with misplaced confidence, it is applied not 
without some limitations. Thus it is held in Massachusetts 
that where a woman, pregnant by another man at the time of 
the nuptials, bears a child soon after to an innocent husl)and, 
the marriage may be avoided by him ; for she has thereby not 
only inflicted upon him, by deception, the grossest possible 
moral injury, but subjected them both to scandal and ill-re- 
pute.^ The same court, however, has taken heed not to press 
this exception far, refusing to allow one to shake off the obli- 
gations he has contracted with a woman whom he knew before 



1 Lord Stowell, in Wakefield v. Mac- Best, 1 Add. Ec 411 ; 2 Eng. Ec. 158 ; 
ka.y, 1 Phillim. 137 ; 2 Kent Com. 77 ; Leavitt v. Leavitt, 13 Mich. 452 ; Vizier 
1 Bish. Mar. & Div. 5th ed, §§ 166- v Still, SI Iowa, 107. 

168; Schoul. Hus. & Wife, § 530. ^ Reynolds v. Reynolds, 3 Allen, 605. 

2 1 Bish. Mar. & Div. §§ 170, 179; See also Baker v. Baker, 13 Cal. 87 ; 
Rogers Ec. Law, 2d ed. 644 ; 1 Eras. Montgomery v. Montgomery, 3 Barb. 
Dom. Rel. 231 ; Ayl. Parer. 362, 363 ; Ch. 132 ; Morris v. Morris, Wright, 
Swinb. Spousals, 2d ed. 152; Best v. 630. 

40 



CHAP. I.] MARRIAGE. § 23 

marriage to be with child, and in fact had himself debauched, 
notwitlistanding he married upon the faith of her previous 
assurances that her pregnancy was by him, and was unde- 
ceived by the time the child came into the world. ^ And, 
furthermore, if a man marries any woman whom he knows 
to be unchaste and pregnant, it is his own folly if he places 
implicit confidence in any of her statements.^ But whenever 
an innocent man marries a woman, supposing her, with reason, 
to be virtuous, and she conceals her pregnancy from him, the 
subsequent production of another man's child so unpleasantly 
compKcates the marriage relation that he ought to be allowed 
his exit if he so desires, both in justice to himself and because 
the woman knew the risk she ran of bringing the parental 
relation to shame by marrying, and chose to incur it. In 
short, while marriage may be accepted by any one whose 
past life has been dissolute, as the portal to a new and honest 
career, for which reason concealment of the past cannot 
legally be predicated of either party as an essential fraud, we 
apprehend that the woman who brings surreptitiously to the 
marriage bed the incumbrance of some outside illicit connec- 
tion introduces a disqualification to the union as real as the 
physical impotence of a man would be, resulting from his 
own lasciviousness. 

As to error, it may be said, as in fraud, that the error 
should reach the essentials ; and Chancellor Kent justly 
observes that it would be difficult to find a case where sim- 
ple error, without some other element, would be permitted to 
vacate a marriage.^ There is an English case in point, where 
a man courted and afterwards married a young lady, believing 
her to be a certain rich widow, whom he had known only by 
reputation. She and her friends had countenanced the de- 
ception. It was held, nevertheless, that the marriage must 

1 Foss y. Foss, 12 Allen, 26. It was 2 Crehore v. Crehore, 97 Mass. 

here suggested by the court that the 830. 

man might have taken medical or ^ 2 Kent Com. 77. See Lord Camp- 
other advice before marriage, instead bell, in Reg. v. Millis, 10 CI. & F. 534, 
of relying upon the woman's word. 785 ; 1 Bish. Mar. & Div. 5th ed § 207 ; 
As to such statute cause of divorce, Clowes v. Clowes, 3 Curt. Ec. 185, 
see Schoul. Hus. & Wife. 191. 

41 



§ 24 THE DOMESTIC RELATIONS. [PART U. 

stand.^ But the palpable substitution of some other indi- 
vidual for the person actually accepted and intended for mar- 
riage may properly be repudiated by the victim to the fraud.^ 
And some cases have gone even farther, as where a scoundrel 
palms himself off as a certain individual of good repute;^ 
though, generally speaking, deception as to name is not re- 
garded as more fatal than deception as to character or fortune. 

The element of imperfect consent is readily associated with 
cases of the present class. Thus, if a person is unwittingly 
entrapped into a marriage ceremony, not meaning nor afford- 
ing reason for the other party to believe that it should be 
binding, this marriage may be repudiated.* And in general 
a mock marriage in jest is no marriage.^ 

§ 24. Force, Fraud, and Error : Subject continued. — In most 
of the reported cases of force, fraud, and error, two or more 
of these elements are united ; and frequently another distinct 
impediment appears, such as tender years on the part of the 
injured party ; or, with regard to the offender, the suppression 
of material facts relative to some former marriage, or to his 
own mental or physical incapacity ; or some other cause of 
nullity is shown by the evidence. In the reported cases, 
where the complainant was successful, some unprincipled man 
has generally sought to gain undue advantages from the per- 
son and fortunes of one whose feebler will rendered her an 
easy prey ; it rarely, if ever, appears that such force or fraud 
led to a reasonable and well-assorted match. Such unequal 
alliances need find favor from no tribunal.^ 

All marriages of this sort are binding without further cere- 
mony, provided the injured party sees fit to affirm it after^all 
constraint is removed, or, in other words, to perfect the con- 

1 FeilJing's Case, cited in Burke's s McClurg v. Terry, 21 N. J. Eq. 226. 
Celebrated Trials, G3, 78, and in 1 Bish. See post, § 26. 

Mar. & Div. 5tii ed. § 204. ^ See Heffer v. Heffer, 3 M. & S. 

2 Fiction supplies such instances, as 2G5 ; Rex v. Burton-upon-Trent, 3 M. 
in Scott's novel, St. Ronan's Well. & S. 537 ; Swift w. Kelly, 3 Knapp, 257; 
And see 2 Kent Com. 77; 1 Bish. Nace v. Boyer, 6 Casey, 99; Robert- 
§ 207. son V. Cole, 12 Tex. 356 ; Cameron 

3 Rex V. Burton, 3 M. & S. 537. v. Malcolm, Mor. 12586, cited 1 Bish. 
* Clark V. Field, 13 Vt. 460. § 199 ; Lyndon v. Lyndon, 69 111. 43 ; 

Powell V. Cobb, 3 Jones Eq. 456. 

42 



CHAP. I.] MARKIAGE. § 25 

sent ; but no such freedom of choice seems to be left to the 
offending party. Hence, this sort of marriage seems neither 
void nor voidable in the legal acceptation ; but rather in- 
choate or incomplete until ratified, though void if the injured 
choose so to treat it. Where consummation never followed 
the nuptials, the courts are the more readily disposed to set 
aside the match ; ^ but in any event copulation, with knowl- 
edge of the fraud, and after removal of all constraint, is an 
effectual bar to relief.^ 

The issue, we may add, is between the offender and the in- 
jured party, and third persons have no right to interfere, al- 
though it be alleged that there was intent to defraud them in 
their own property interests.^ In fact, marriage stands or falls 
by public permission with reference only to the marriage par- 
ties ; and wherever they have legally assumed the relation as 
one agreeable to themselves, outsiders cannot meddle with the 
status from outside considerations. Where, too, a marriage 
has been effected through the fraudulent conspiracy of third 
persons, the rule is that, unless one of the contracting parties 
is cognizant of the fraud, the marriage is perfect ; but, if cog- 
nizant, it is to be deemed the fraud of such party and treated 
accordingly.* 

§ 25. Essential of Marriage Celebration. — Eighth. We are 
now brought to the important subject of the formal marriage 
celebration. Here there is a wide difference noticeable be- 
tween general principles and established practice. We are 
to consider this topic, then, in two separate aspects: (1) as 
to marriage observance in the absence of civil requirements ; 
(2) as to marriage observance under the statutes now in 
force in England and America. 

It is to be premised, however, by way of enlarging upon 

1 Lyndon v. Lyndon, 69 111. 43 ; Rob- ^ McKinney v. Clarke, 2 Swan, 
ertson v. Cole, 12 Tex. 356 ; Cameron 321. 

V. Malcolm, supra. i Sullivan v. Sullivan, 2 Hag. Con. 

2 1 Bish. Mar. & Div. 5th ed, §§ 214, 238, 246 ; Rex v. Minsliull, 1 Nev. & M. 
215; 1 Burge Col. & For. Laws, 137; 277 ; 1 Bish. Mar. & Div. § 173, et seq. ; 
1 Eras. Dom. Rel. 229 ; Scott v. Shu- Barnes v. Wyethe, 28 Vt. 41 ; Bassett 
feldt, 5 Paige, 43 ; Leavitt v. Leavitt, v. Bassett, 9 I5usli, 09(3. 

13 Mich. 452 ; Hampstead v. Plaistow, 
49 N. n. 84. 

43 



§ 26 THE DOMESTIC KELATIONS. [PART II. 

the idea of perfect and imperfect consent suggested under the 
last head, that some form of marriage promise, some cere- 
mony, however slight, has always been deemed essential to 
the validity of marriage. The common language of the 
books is, that, in the absence of civil regulations to the con- 
trary, marriage is a contract, and nothing but mutual consent 
is required. And the old maxim of the Roman law is quoted 
to support this view : Nujjtias non concubitus, sed consensus, 
faeiO But is there not an ambiguity in the use of such lan- 
guage ? For it is material to ask whether consensus, or con- 
sent, is used in the sense of simple volition or an expression of 
volition. We maintain that the latter is the correct legal 
view ; and that it should be said that the law requires in such 
cases a simple expression of lyiutual consent, and no more. For 
the very definition of marriage implies that there should be 
not only the consenting mind, but an expression of the con- 
senting mind, by words or signs, which expression in proper 
form constitutes in fact the marriage agreement. It is in this 
sense that we shall apply the terms formal and informal to 
marriage in the following sections. 

§ 20. Same Subject ; Informal Celebration. — (1) To Consti- 
tute a marriage, then, where there are no civil requirements, — 
or, in other words, to constitute an informal marriage, — words 
clearly expressing mutual consent are sufficient without other 
solemnities. Two forms of consent are mentioned in the 
books : the one, consent per verba de prcesenti, with or without 
consummation; the other, consent per verba de future, fol- 
lowed by consummation.^ Some writers have added a third 
form of consent, — by habit and repute ; but this is, very 
clearly, nothing more than evidence of consummated marriage 
amounting to a presumption conclusive enough for the pur- 
pose at hand.^ So, too, there is reason to suppose that the 

1 See 2 Kent Com. 86, 87; Co. Ap. Cas. 547 ; 1 Bish. Mar. & Div. 5th 
Litt. 33rt ; 1 Bish. Mar. & Div. §§ 218- ed. § 227. 

267. ^ Lord Selborne, in the recent case 

2 Swinb. Spousals, 2d ed. 8 ; 2 Burn of De Thoren v. Attorney-General, 1 
Ec. Law, Phillim. ed. 455e; Lord Cot- H. L. App. 686, confirms this view, 
tenliam, in Stewart v. Menzies, 2 Rob. See also Breadalbane's Case, L. R. 1 H. 

L. Sc. 182. 

44 



CHAP. I.] MARRIAGE. § 26 

marriage per verba defuturo is of the same sort as the former; 
marriage per verba de proisenti constituting the only real mar- 
riage promise, while consummation following de futuro words 
of promise raises a legal presumption, not probably conclu- 
sive, that words de proisenti afterwards passed between the 
parties. The copula is no part of the marriage ; it only serves 
to some extent as evidence of marriage.^ Conse7isus, non con- 
cubitus, is the maxim of the civil, ecclesiastical, and common 
law alike.2 

Informal celebration constitutes marriage as known to nat- 
ural and public law. The English canon law, as it stood pre- 
vious to the Council of Trent, the law of Scotland, the law 
of some of the United States, and perhaps the common law 
of England, all dispense with the ceremonial observances of 
formal marriage.^ Informal marriage is to be sustained on 
tlfe theory that an institution of such fundamental impor- 
tance to our race ought to be good independently of, and 
prior to, the formal requirements which human government 
imposes at an advanced stage of society. But, as we shall 
see, the marriage acts now in force in England and many of 
the United States render certain solemnities, religious or sec- 
ular, indispensable. Most of the continuous decisions relat- 
ing to informal marriages are therefore to be found in the 
Scotch reports, where the general doctrine has been pretty 
fully discussed. And the great, the almost insuperable, diffi- 
culty which presents itself at the outset in such cases is thus 
clearly indicated by Lord Stowell in Lindo v. BeUsario : " A 

1 Port V. Port, 70 111. 484 ; 1 Bish. Brannock, 66 Mo. 391 ; Campbell v. 
Mar. & Div. 5tli ed. §§ 228, 254; Jack- Gullatt, 43 Ala. 57 ; Askew v. Dupree, 
son V. Winne, 7 Wend. 47 ; Dumaresly 30 Ga. 173. But Maryland repudiates 
V. Fishly, 3 A. K. Marsh. 368, 372; the doctrine of informal marriages: 
Peck V. Peck, 12 R. I. 485. Denison v. Denison, 35 Md. 361 ; as, 

2 Dalrymple v. Dalrymple, 2 Hag. by force of statute or otherwise, do cer- 
Con. 54 ; 4 p]ng. Ec. 485, 489 ; Shelf, tain other States. See 1 Bishop, § 279 ; 
Mar. & Div. 5-7. Estill v. Rogers, 1 Bush, 62 ; Holmes 

3 Informal marriage has been recog- v. Holmes, 1 Abb. (U. S.) 525 ; Robert- 
nized to a greater or less extent in the son v. State, 42 Ala. 509 ; State v. 
United States. Dickerson v. Brown, Miller, 23 Minn. 352 ; Commonwealth 
49 Miss. 357 ; Hutchins v. Kimmell, 31 v. Munson, 127 Mass. 459 ; State v. 
Mich. 126; Port v. Port, 70 111. 484; Hodgskins, 19 Me. 155; Schoul. IIus. 
Lewis V. Ames, 44 Tex. 319 ; Dyer v. & Wife, §§ 31-34. 

45 



§ 26 THE DOMESTIC RELATIONS. [PART II. 

marriage is not every carnal commerce ; nor would it be so 
even in the law of nature. A mere carnal commerce, with- 
out the intention of cohabitation and bringing up of children, 
would not constitute marriage under any supposition. But 
when two persons agree to have that commerce for the pro- 
creation and bringing up of children, and for such lasting 
cohabitation, — that, in a state of nature, would be a mar- 
riage ; and, in the absence of all civil and religious institu- 
tions, might safely be presumed to be, as it is properly called, 
a marriage in the sight of G-od."" ^ Did parties therefore 
coming thus together mean fornication or did they mean 
marriage ? 

Here it is seen that there should not only be words of 
promise, but that they should be uttered with matrimonial 
intent. To ascertain the purpose of the parties in each case, 
the courts will look at all the circumstances, and even admit 
parol evidence to contradict the terms of a written contract ; 
in this respect modifying the ordinary rules of evidence. For 
writings of matrimonial acknowledgment may have been in- 
terchanged as a blind or cover for some scheme well under- 
stood between the parties.^ Or again by way of jest.^ But, 
in cases of doubt, the rule is to sustain the marriage as law- 
ful and binding. If there has been continued intercourse 
between the parties, this presumption becomes of course still 
strono-er. And if promises were exchanged while one acted 
in good faith and in earnest, the other is not permitted to 
plead a mental reservation.'* 

Hence, we may observe, generally, that a betrothal fol- 
lowed by copulation does not make this informal marriage a 
legal one, when the parties looked forward to a formal mar- 
riage ceremony, and did not agree to become husband and 

1 1 Hag. Con. 216; 4 Eng. Ec. 367, cited in 1 Bish. Mar. & Div. 5th ed. 

374. See 1 Bish. Mar. & Div. 5th ed. §§ 239-241. 

§§ 216-267, and cases cited ; 2 Kent 3 Jh. ; supra, § 23 ; McClurg v. Terry, 

Com. 8G and n. ; 1 Eras. Dom. Rel. 149, 21 N. J. Eq. 225 ; Clark v. Field, 13 Vt. 

184, 187, 212. 460. 

•^ Dalrymple v. Dalryraple, 2 Hag. •* lb. And see 1 Eras. Dom. Rel. 

Con. 54, 105; 4 Eng. Ec. 485, 508, 509, 213; Lockyer r. Sinclair, 8 Scotch 

Sess. Cas. n. s. 582. 

46 



CHAP. I.] MARRIAGE. § 26 

wife without it.^ If, too, a woman, in surrendering her per- 
son to a man, is conscious that she is committing an act of 
fornication instead of consummating such a marriage, the 
copula cannot, for her sake, be connected with any previous 
words of promise so as to constitute a marriage.''^ And a 
union once originating between man and woman, purely 
illicit in its character, and voluntarily so, there must appear 
some formal and explicit agreement between the parties 
thereto, or a marriage ceremony, or some open and visible 
change in their habits and relations, pointing to honest inten- 
tions, before their alliance can be regarded as converted into 
either a formal or an informal marriage.'^ 

Nor is the issue between informal marriage and illicit 
intercourse to be concluded by the conduct of the pair 
towards society. They may, for convenience or decency's 
sake, hold themselves out to third persons as man and wife, 
while yet sustaining at law, and intentionally, a purely mere- 
tricious relation.* 

And yet a proper regard for the real intention of the co- 
habiting pair encourages often the presumption of innocence 
and good faith, even where the relation assumed was an illegal 
one. Supposing two persons to have made an informal mar- 
riage, in the mistaken belief that the former spouse of one of 
them was already dead, or that some sentence of divorce left 
them, in like manner, free to unite. This case should be dis- 
tinguished from that of some original understanding for a 
mere carnal commerce. And if the impediment becomes re- 
moved in the course of their cohabitation under such circum- 
stances, and the pair live continuously together as man and 
wife, no new ceremony, agreement, or visible change in their 
relation would probably be deemed requisite to establish mat- 

1 Peck V. Peck, 12 R. I. 485 ; Bever- point. It is stated in Breadalbane's 
son's Estate, 47 Cal. 621. Case, L. R. 1 H. L. Sc. 182, that a con- 

2 Port V. Port, 70 111. 484. neotion beginning as adulterous may, 

3 See Floyd v. Calvert, 53 Miss. 37 ; on ceasing to be so, become matri- 
Duncan i;. Duncan, 10 Ohio St. 181 ; monial by consent, and evidenced by 
Hunt's Appeal, 86 Penn. St. 294 ; Wil- habit and repute, without a public 
Hams V. Williams, 46 Wis. 464 ; Bar- act. 

num V. Barnum, 42 Md. 251. Perhaps * Howe's Estate, Myrick's Probate, 
the Scotch law is less emphatic on this 100. 

47 



§26 



THE DOMESTIC RELATIONS. 



[part II. 



rimoiiial consent subsequent to the removal of the impedi- 
ment ; for here the original intention continues, but in the 
case of carnal commerce necessarily changes, in order that an 
honest relation may be presumed.^ 

Disbelief in ceremonials, or conscientious scruples, may be 
alleged in support of an informal marriage, by way of pref- 
erence, where such latter marriage is held lawful, and the 
parties mutually contracted with the view of a lawful union.^ 



1 See De Thoren v. Attorney-Gen- 
eral, 1 H. L. App. 686, where tlie im- 
pediment followed divorce ; here it was 
held, in conformity with the rule above 
stated, tliat matrimonial consent after 
the marriage impediment was removed 
might be presumed. 

^ See Bissell v. Bissell, 55 Barb. 
325. Alittr, where statutes positively 
require a ceremonial marriage. See 
post, § 28. 

A late interesting Scotch case illus- 
trates the painful uncertainty which 
hangs about these informal marriages. 
A baronet of forty, and a bachelor, 
whose dissolute habits were notorious, 
had somewhat intimate relations with 
the family of a man who made fish- 
tackles. Entertained at the hitter's 
house, on a birthday occasion, with a 
champagne supper, after which allusion 
was made by the host to the bad name 
he was getting with having the ban)net 
so much among his daughters, the titled 
guest offered to shut people's mouths ; 
he was poor and could not marry now, 
he said, but would marry after Scotch 
fashion. Then, kneeling before one of 
the daughters, a damsel of sixteen, he 
took a ring from his pocket, placed it 
upon her third finger, and said to her, 
" Maggie, you are my wife before 
Heaven, so help me, God ! " and the 
two kissed each other. The daughter 
said " Oh, Major ! " and put lier arms 
around his neck. The baronet and the 
daughter were then "bedded" accord- 
ing to the old Scotch fashion. They 
lived together for some weeks after 
this celebration, and met at various 
times, but there appears to have been 
no continuous cohabitation. In about 

48 



thirteen months Maggie had a boy, 
whom she registered as illegitimate ; 
and, some eigliteen months later still, 
the baronet died. The parties to this 
hasty and apparently unpremeditated 
union had not, meantiiue, represented 
themselves as husband and wife ; and 
as for the baronet, he denied to others 
that such relation existed, until, when 
lying at the point of death in delirium 
tremens, he seemed doubtfully to ad- 
mit it. Now, here was an informal 
marriage, with words of suitable im- 
port, solemn and precise, followed by 
consummation. Supposing this cere- 
mony to have been with marriage 
intention, there was no reason for dis- 
puting its validity ; nor, indeed, on the 
girl's behalf, provided she took all in 
seriousness, even though the baronet 
himself jested. To be sure, he might 
have been maudlin at the moment ; 
on which point, however, the case did 
not turn. The British House of Lords 
reversed the decision of the Scotch 
Court of Sessions, mainly upon cir- 
cumstantial proof that both parties 
by behavior subsequent to the cere- 
mony, repudiated its force, and that 
neither, in fact, had been in earnest. 
The present issue involved the inheri- 
tance of the baronet's estate at some 
lapse from his death. Both parents of 
the girl were now dead ; the baronet 
had begotten illegitimate offspring dur- 
ing his life elsewhere ; and instead of 
asserting upon his death, as she might, 
that this boy was his lawful child, 
Maggie had at first claimed only a bas- 
tard's support for him. Steuart v. 
Robertson, L. R. 2 H. L. Sc 494. 



CHAP. I.] MARRIAGE. § 27 

§ 27. Same Subject ; Informal Celebration. — Words of pres- 
ent promise, in order to constitute an informal marriage, must 
contemplate a present, not a future, assumption of the status. 
And herein lies a difficulty : that of discriminating between 
actual marriage and what we now commonly term an engage- 
ment. If the agreement be by words of present promise, — 
as if the parties should say, " We agree to be henceforth 
man and wife," — the marriage is perfect. The form of ex- 
pression is not material.^ And Swinburne says that though 
the words should not of themselves conclude matrimony, yet 
the marriage would be good if it appeared that such was the 
intent.^ The proposal of one must be actually accepted by 
the other ; yet such acceptance may be indicated by acts, such 
as a nod or courtesy. The mutual consent may be expressed 
orally or in writing.''^ Written promises are of course un- 
necessary ; though the reported cases show frequently letters 
or other writings interchanged, from which the intent was 
gathered. And in the celebrated Scotch case of Dalrym'ple 
V. Dalrym'ple^ a marriage promise was established from the 
successive united acknowledgments of tlie parties as man and 
wife, the writings having been preserved by the lady and 
produced by her at the trial. In this case the principle was 
sustained, that words importing secrecy or alluding to some 
future act or public acknowledgment, when superadded to 
words of present promise, do not invalidate the agreement.^ 
More uncertainty arises in matrimonial contracts where a 
condition inconsistent with marriage is superadded ; as if par- 
ties should agree to live together as man and wife for ten 
years; but hona fide intent may be fairly presumed where 
there are no special circumstances to throw light upon the 
conduct of the parties.^ 

1 1 Bisli. Mar. & Div. 5th ed. §§ 227, * Dalrymple v. Dalrymple, 2 Hag. 
229; 1 Fras. Dom. Rel 145-149. Con. 54; 4 Eng. Ec. 485; Mclnnes v. 

2 Swinb. Spousals, 2d ed. 87. More, Ferg. Consist. Law Rep. 33 ; 

3 See Sapp v. Newsom, 27 Tex 537, Hoggan v. Cragie, Maclean & Rob. 
vvliere marriage by means of mutually 942. 

executing a bond or contract is sus- ■' See 1 Bish. Mar. & Div. oth ed. 

tained under the old law, which was of §§ 245-250; Currie v. Tumbull, Hume. 

Spanish origin. But cf. State v. Miller, 373 ; 1 Fras. Dom Rel. 154. See Ham- 

23 Minn. 352. ilton v. Hamilton, f) CI & F. 327 ; Hantz 

4 49 



§ 27 THE DOMESTIC RELATIONS. [PART II. 

Marriage by words of future promise is consummated when 
two persons agree to marry at some future period and after- 
wards actually do cohabit. The foundation of this doctrine 
is the presumption that the parties meant right rather than 
wrong, and hence that copulation was permitted on the faith 
of the marriage promise. But in this class of cases it is 
requisite that the promise de futuro should be absolute and 
mutual and in good faith. Mere courtship does not suffice, 
though followed by carnal intercourse.^ Nor in general do 
words of promise with immoral conditions annexed. It is 
admitted that no familiarities short of the copula will con- 
vert such loose espousals into matrimony .^ It is not clear 
whether cohabitation after verba de futuro ever raises a con- 
clusive presumption of marriage at law or not : unquestion- 
ably the more reasonable doctrine, however, is that it does 
not, and that the intent of the parties may be shown as in 
other cases.^ But innocence will be inferred, if possible, 
rather than guilt.* So it has been said that where a legal im- 
pediment exists to a marriage between persons living in licen- 
tious intercourse, as the impediment sinks the status rises.^ 
In New York this doctrine of marriage by words de futuro is 
utterly repudiated, and in other States it is maintained quite 
broadly that all informal marriages were unknown to the 
English common law.'' This last has been long a mooted 

V. Sealy, 6 Binn. 405 ; Robertson r. 2 i ^ish. § 253. 

Cowdry, 2 West. Law Jour. 191 ; and 3 ggg Schoul Hus & Wife, §§ 40- 
in Bisli. supra. Bissell v. Bissell, 55 51, as to breach of promise. Seduction 
Barb. 325, sliows an interesting state of under breacli of promise does not con- 
facts, upon which it was decided that stitute a marriage See, too, Morrison 
tlie marriage was valid. c. Dobson, 8 Scotch Sess. 347. 

1 Reid V. Laing, 1 Shaw App Oas. * See Cheney v. Arnold, 15 N. Y. 

440; Morrison i'. Dobson, 8 Scotch 345; Duncan v. Duncan, 10 Ohio St. 

Sess. 347, cited 1 Bish. § 253 ; Bread- 181 ; and comments of Mr. Bishop, 

albane's Case, L. R. 1 H. L. Sc. 182 ; §§ 255-258 ; Reg. v. MiUis, 10 CI. & F. 

Stewart i'. Menzies, 2 Rob. App. Cas. 534 ; Swinb. Spousals, 2d ed. 225, 226 ; 

547, 591 ; 1 Fras. Dom. Rel 188 : Reg. Robertson v. State, 42 Ala. 509. 

V. Millis, 10 CI. & F. 5.34, 780 : Peck v "> I Bish. Mar & Div 5th ed. § 248; 

Peck, 12 R. I 485; Beverson'.s Estate. De Thoren v. Attorney General, 1 H. 

47 Cal 621; Dumaresly v. Fishly, 3 L App 686 

A. K. Marsh 368 ; 1 Bish Mar & Div. 6 Cheney n. Arnold, 15 N. Y "Ab. 

5th ed §§ 25.3-205, and other cases But see Bish. §§ 255-258; Bissell v. 

cited ; Port v. Port, 70 111. 484 ; Schoul. Bissell, 55 Bar!). 325. And see Deni- 

Hus. & Wife, § 38. son v. Denison, 35 Md. 361 ; Holmes v. 
50 



CHAP. I.] MAERIAGE. § 28 

point in the courts, and will ever remain so ; but whatever 
may have been the historical fact, certain it is that the neces- 
sity of a more formal observance of marriage has been almost 
universally recognized ; and the very words, " marriage in 
the sight of God," so familiar to the readers of the Scotch 
matrimonial law, not only import the peculiar embarrassments 
which attend the justification of such loosely contracted alli- 
ances before the world, but attest the solemn character of this 
institution.^ 

§ 28. Same Subject; Formal Celebration. — (2) All the learn- 
ing of informal marriages, if there was ever much of it, was 
swept out of the English courts when formal religious cele- 
bration was prescribed by positive statute. Ceremonials had 
long been required by those canons upon which the ecclesias- 
tical law was based. Lord Hardwicke's Act, passed in the 
reign of George 11.,^ is the most famous of these statutes. 
This act required all marriages to be solemnized in due form 
in a parish church or public chaj)el, with previous publication 
of the banns ; and marriages not so solemnized were pro- 
nounced void, unless dispensation should be granted by spe- 
cial license. Some harsh provisions of this act were relaxed 
in the reign of George IV., but soon re-enacted.^ More re- 
cent legislation permits of a civil ceremonial before a register, 
to satisfy such as may have conscientious scruples against 
marriage in church.* Such, too, is the general tenor of 
legislation in this country ; the law justly regarding civil obser- 
vances and public registration sufQcient for its own purposes, 
while human nature clins^s to the relig[ious ceremonial.^ 

Holmes, 1 Abb. (U. S.) 52-5; Duncan and joint accumulation of property and 

V. Duncan, 10 Ohio St. 181 ; Port v. care of children, see State v. Miller, 23 

Port, 70 111. 484. The opinion of Lord Minn. 352. And see Commonwealth v. 

Stowell, in the case of Dalrymple v. Munson, 127 Mass. 459. See, further, 

Dalrymple, to which we have alluded, Schoul. Hus. & Wife, §§ 38, 39. 
is an admirable exposition of the law 2 26 Geo. II. c. 33 (1753). 
of informal marriages. It is a master- ^ 3 Qqq, IV. ; 4 Geo. IV. c. 76. 

piece of judicial eloquence and careful * See 6 & 7 Will. IV. c. 85, & c. 88 ; 

research. 7 Will. IV., and 1 Vict, c 22, and 3 & 

1 For a case arising on an indict- 4 Vict. c. 92. 
ment against a man for cohabiting with ^ See 2 Kent Com. 88-90 ; 1 Bish. 

a woman Avithout formal marriage, but Mar. & Div. 5th ed. § 279. 
under a special contract for a life-union 

51 



§ 28 THE DOMESTIC RELATIONS. [PART II. 

Either celebration before a clergyman or with the partici- 
pation of some one of such civil officers as the statute may 
designate is therefore at the option of parties choosing at the 
present day to marry. This is the law of England and 
America. And the only controversies ever likely to occur in 
our courts would be where the language of the statutes in 
some particular State left it doubtful whether marriages 
celebrated informally were to be considered absolutely null. 
It is to be borne in mind that Lord Hardwicke's Act is of too 
recent a date to be considered as part of our common law. 
Was, then, marriage in facie ecclesice essential in England 
before the passage of this act? It is admitted that the reli- 
gious marriage celebration was customary previous to the 
Reformation. It is further allowed that the church, centu- 
ries ago, created an impediment, now obsolete, called " pre- 
contract," the effect of which was that parties engaged to be 
married were bound by an indissoluble tie, so that either one 
could compel the other to submit at any time to the ceremo- 
nial marriage. But whether precontract rendered children 
legitimate, and carried dower, curtesy, and the other inci- 
dents of a valid marriage, is not clear. In 1844 the question, 
whether at the common law a marriage without religious 
ceremony was valid, went to the English House of Lords, and 
resulted in an equal division. ^ And, curiously enough, such 
was the fate of a similar case in this country before the high- 
est tribunal in the land.^ So that we may fairly consider the 
law on this point as for ever unsettled.^ 

1 Reg. v. Millis, 10 CI. & F. 534. Mr. Bishop confirms these conclusions 

2 Jewell V. Jewell, 1 How. (U. S.) while suggesting new reasons for such 
219. an American doctrine ; as, for instance, 

3 See full discussion of this question, that in these colonies the attendance 
with authorities, in note to 2 Kent Com. of one in holy orders, and more espe- 
87 ; also in 1 Bish. Mar. & Div. §§ 209- cially of an ordained clergyman of the 
282; Cheney v. Arnold, 15 N. Y. 345. established church, could not always 
The American doctrine is, that the in- be readily procured. See 1 Bish. Mar. 
tervention of one in holy orders was not & Div. 5th ed. §§ 279-282, and deci- 
essential at common law. This is the sions collated ; 2 Kent Com. 87; Reeve 
view of Chancellor Kent, Judge Reeve, Dom. Rel. 195 et seq.; 2 Greenl. Ev. 
and Professor (ireenlcaf, as expressed § 460. 

in tlieir respective text-books ; also the But in several States the contrary 
general current of American decisions, is declared to be the common law. 

52 



CHAP. I.] MAERIAGE. § 28 

Among most nations and in all ages has the celebration of 
marriage been attended with peculiar forms and ceremonies, 
which have partaken more or less of the religious character. 
Even the most barbarous tribes so treat it where they hold to 
the institution at all. The Greeks offered up a solemn sacri- 
fice, and the bride was led in great pomp to her new home. 
In Rome, similar customs prevailed down to the time of 
Tiberius. Marriage, it is true, degenerated afterwards into a 
mere civil contract of the loosest description ; parties being 
permitted to cohabit and separate with almost equal freedom.^ 
The early Christians, there is reason to suppose, treated mar- 
riage as a civil contract ; yielding, perhaps, to the prevailing 
Roman law. Yet the teachings of the New Testament and 
church discipline gave peculiar solemnity to the relation. 
And religious observances must have prevailed at an early 
date, for in process of time marriage became a sacrament. 
In England, centuries later, it needed only Lord Hardwicke's 
Act to apply statute law to a universal practice ; for although, 
in the time of Cromwell, justices of the peace were permitted 
to perform the ceremony, popular usage by no means sanc- 
tioned the change. Informal marriages are uncommon even 
in Scotland, where the civil law prevails. In our own coun- 
try it is not surprising that local jurisprudence should have 
exhibited some signs of reaction against ancient canon and 
kingly ordinance. Yet, even with us, the almost universal 
custom repudiates informal and civil observances ; and, 
secured in the privilege of choosing prosaic and business-like 
methods of procedure, Christian America yields its testimony 
in favor of marriage in facie ecclesice? 

1 Bish. ib. And statutory forms are servance. We are speaking only of 

declared requisite, and the doctrines of the universal testimony as to the fitness 

informal marriage denied more or less of peculiar and in general religious ob- 

emphatically, as the foregoing pages servances. Judge Reeve, exliibiting 

have shown. Supra, § 26, note. his contempt for " Popish " practices, 

1 Smith's Diet. Antiq. "Marriage;" says, "There is nothing in the nature 

supra. Part I. of a marriage contract tliat is more 

■^ See 2 Kent Com. 89, and authori- sacred than that of other contracts, that 

ties cited. requires the interposition of a person 

We do not mean to imply that mar- in holy orders, or that it should be 

riage is a sacrament, or that religious solemnized in church." Eeeve Dom. 

ceremonies are essential to its due ob- Eel. 196. At tiie time he wrote, was 

53 



§ 29 THE DOMESTIC RELATIONS. [PART II. 

§ 29. Same Subject ; Formal Celebration. — But, out of con- 
sideration for what may be termed the public, or natural and 
theoretical law of marriage, many American courts have, to 
a very liberal extent and beyond all stress of necessity, upheld 
the informal marriage against even legislative provisions for 
a formal celebration. Marriage being a matter of common 
right, it is lately held by the highest tribunal for harmonizing 
the rule of States, that, unless the local statute which pre- 
scribes regulations for the formal marriage ceremony posi- 
tively directs that marriages not complying with its provisions 
shall be deemed void, the informal marriage by words of 
present promise must be pronounced valid, notwithstanding 
statutory directions have been disregarded.^ 

Whether we must absolutely accept this doctrine, or not, 
in its full pernicious extent, and thus put legislators to the 
use of express words of nullity in statutes which might other- 
wise as well have been omitted, the main purpose of enforc- 
ing upon civilized and populous communities marriage rites 
appropriate to so solemn an institution being surely desirable, 
it will be readily conceded that English and American tribu- 
nals tend, in construing the marriage acts, to uphold every 
marriage, if possible, notwithstanding a non-compliance with 
the literal forms. And this is right ; for while formal cele- 
bration is a shield to honest spouses and their posterity, rigor 
in the details of form, especially in inconvenient or trivial 
details, or those which it is incumbent rather upon third per- 
sons to respect, exposes them to new dangers. Thus is it 
as concerns place ; ^ and as to the due proclamation of banns, 
collateral points concerning ecclesiastical authority are inap- 
propriate.^ And though the parties may have failed to ob- 

not the practice prevailing in New 2 Queen v. Cresswell, 1 Q. B. D. 446. 
England contrary to his theory, as it And see Stallwood v. Tredger, 2 Phil- 
was before and as it remains still ^ lira. 287. 

And who has ever proposed in modern ^ See Hutton v. Harper, 1 H. L. 

times to perform a business contract in App. 464 ; Sichel v. Lambert, 15 C. B. 

church ■^ N. 8. 781 ; Prowse v. Spurway, 26 W. R. 

1 Meister v. Moore, 96 U. S. 76, 116; Cannon y. Alsbury, 1 A. K. Marsh, 

citing this as the rule in Michi- 76; Askew v, Dupree, 30 Ga. 173; 

gan ; Hutchins v. Kimmell, 31 Mich. Blackburn v. Crawfords, 3 Wall. 175; 

128; Londonderry v. Chester, 2 N. H. Holmes r. Holmes, 6 La 46'.; Sieven- 

208. son V. Gray, 17 B. Monr. ly3. 

64 



CHAP. I.] MAKRIAGE. § 30 

serve certain formalities of license or registry, their marriage 
will generally be held good in both England and this country, 
even though the magistrate or clergyman be subject himself 
to a penalty for the irregularity.^ On the other hand, our 
ceremonial statutes of marriage, which require fulfilment at 
all, must, in fundamental respects at all events, be complied 
with. Thus, the essence of formal marriage seems to consist 
in the performance of the ceremony by or in the presence of 
a responsible third person. And hence, unless parties can 
take refuge in natural law and an informal marriage, they are 
not permitted to tie their own knot.''^ 

§ 30. Consent of Parents and Guardians. — The consent of 
parents and guardians is one of those formalities which mar- 
riage celebration acts now commonly prescribe in the interest 
of society, as they do banns or the procurement of a license 
generally for better publicity. Such consent was not neces- 
sary to perfect a marriage at the common law. But Lord 
Hardwicke's Act made the marriage of minors void without 
consent of parents or guardians first obtained.^ This proved 
intolerable. A bona fide and apparently regular marriage was 
in one instance set aside, after important rights had inter- 
vened, for no other cause than that an absent father, sup- 
posed to be dead, but turning up unexpectedly, had failed to 
bestow his permission, and the mother had acted in his 
stead."^ Gretna Green marriages, on Scotch soil, became the 
usual recourse for children with unwilling protectors.^ Hence 
the law was afterwards modified, so that, without the re- 
quisite consent, marriages, although forbidden, might remain 



1 Upon this point see further, 1 Bish. Mar. & Div. 5th ed. §§ 293-295, 
Schoul. Hus. & Wife, § 35, and cases and cases cited. 

cited ; 1 Bish. Mar. & Div. §§ 283, 287. * Hayes v. Watts, 2 Phillim. 43. 

2 Commonwealth v. Munson, 127 ^ Stat. ]0 & 20 Vict. c. 96, to stop 
Mass. 459. And see Milford v. Wor- these runaway matches, enacts that no 
cester, 7 Mass. 48. But in Beamisli v. irregular marriage contracted in Scot- 
Beamish, 1 Jur. N. s. Part II. 455, it land shall be valid unless one of the 
was held in Ireland that a clergyman parties had his or her usual residence 
might marry himself. See 1 Bish. in Scotland, or lived there for 21 days 
§ 289. preceding the marriage. Lawford v. 

» 26 Geo. II. c. 33. See 2 Kent Davies, 39 L. T. n. s. 111. 
Com. 85 ; Eex v. Hodnett, 1 T. R. 96 ; 

65 



§ 31 THE DOMESTIC RELATIONS. [PART H. 

valid ; ^ and these features are found to characterize the mar- 
riage acts in the different States of this country .^ Claudes- 
tine marriages are doubtless to be discouraged, and the law- 
will willingly inflict penalties upon clergymen, magistrates, 
and all others who aid the parties in their unwise conduct, 
the penalty serving in a measure as indemnification to the 
parent or guardian ; but experience shows that legislation 
cannot safely interpose much farther.^ 

Under such statutes (which, however, vary in language 
and scope in different States) it has been held that if a minor 
has both parent and guardian, the guardian should consent 
in preference ; though it might appear more proper to con- 
sider which has the actual care and government of the minor. 
One who has relinquished the parental control cannot sue for 
the penalty ; bat a father's unfitness is not pertinent to the 
issue of uniting his minor child in marriage without his 
leave, nor ground for accepting the mother's sole consent 
instead. In this class of statutes the minister or magistrate 
who has made himself amenable to the law cannot in general 
defend on the plea that he acted in good faith. The ex- 
pression of consent is in some States made a prerequisite to 
granting the marriage license.* 

§ 31. Legalizing Defective Marriages ; Legislative Marriage. — 
Defective marriages, we may further observe, have in some 
instances been legalized by statute ; as where parties within 
the prohibited degrees of consanguinity or affinity have 
united. So with marriages before a person professing to be 
a clergyman or justice of the peace, btit without actual 



1 Rex V. Birmingham, 8 B. & C. 29 ; Dole, 20 La. Ann. 378. The language 
Shelf. Mar. & Div. 309-322 ; Stat. 4 of some statutes leaves the point in 
Geo. IV. c. 76. doubt as to wliether marriage without 

2 1 Bish. Mar. &, Div. §§ 341-347, the consent of parents renders the 
and cases cited; Smyth v. State, 13 marriage void, or only subjects offend- 
Ark. G90 ; WyckofF v. Boggs, 2 Halst. ing parties, including tlie person who 
138; Bollin v. Shiner, 2 Jones (Pa.), performs the ceremony, to a penalty. 
205. And see Wood v. Adams, 35 But the latter is, of course, to be pre- 
N. H. 32 ; Kent v. State, 8 Blackf 163 ; sumed rather than the former. 
Askew V. Dupree, 30 Ga. 173 ; Fitz- 3 gee further, Schoul. Hus, & Wife, 
Patrick v. Fitzpatrick, 6 Nev. 63 ; Ad- § 36. 

ams V. Outright, 53 111. 361 ; State v. * Schoul. Hus. & Wife, § 36. 

66 



CHAP. I.] MARRIAGE. § 32 

authority. On principle, in fact, there seems no reason to 
doubt that any government, through its legislative branch, 
may uuite a willing pair in matrimony, as well as pass gen- 
eral laws for that purpose,^ But though legislative divorces 
are not unfrequeut, a legislative marriage is something 
unknown, not to say uncalled for. And in this country, 
questions of fundamental constraint under a written consti- 
tution might arise, even where the cure only of a defective 
marriage was sought by the legislature; inasmuch as the inter- 
vening rights of third persons might thereby be prejudiced.^ 

§ 32. Restraints upon Marriage. — The policy of restraining 
marriage is treated with disfavor by our law, which on the 
contrary seems disposed to encourage the institution, though 
not to the extent practised by some countries of openly pro- 
moting its observance, or forcing private inclination in the 
conjugal direction. Numerous cases, those particularly which 
construe the provisions of testamentary trusts, have laid it 
down that the general restraint of marriage is to be dis- 
couraged. Accordingly a condition subsequent, annexed by 
way of forfeiture to a gift, legacy, or bequest, in case the 
donee or legatee should marry, will be held void and in- 
operative, as a restraint upon marriage, and so as to both 
income and capital.^ But marriage and remarriage are 
differently viewed in this respect ; and it is well settled that 
forfeituie by condition subsequent in case a widow shall 
marry again must be upheld as valid, whether that widow 
be the beneficiary through her husband or some other person. 
Does the latter rule apply equally to widow and widower, 
woman and man ? Upon full consideration the English 
chancery held a few years ago, on appeal (reversing the 
decision of the lower tribunal), that it does.* 

1 Brunswick v. Litchfield, 2 Greenl. legal presumptions, see 1 Bish. Mar. & 

28 ; Moore v. Wliittalcer, 2 Harring. Div. 5tii ed. § 432 et seq. ; Schoul. Hus. 

50 ; Goshen v. Richmond, 4 Allen, 458 ; & Wife, §§ 38, 39. 
1 Bish. Mar. & Div. 5th ed. §§ 657-6.39. See also promises to marry, Schoul. 

As to tlie effect of a Texas statute, Hus. & Wife, §§ 40-51. 
which relaxed old requirements in le- ^ See Bellairs v. Bellairs, L. R. 18 

galizing an irregular marriage, see Rice Eq. 510, and cases cited. 
V. Rice, 31 Tex. 174. * Allen v. Jackson, 1 Ch. D. 399, re- 

- As to the proof of a marriage and versing s. c. L. R. 19 Eq. C31. See 

57 



§ 33 THE DOMESTIC RELATIONS. [PART U. 

The latest English decisioiib, on the whole, do not stren- 
uously resist these restraints upon marriage in testamentary 
trusts.^ And it is doubtful whether the rule disco urasrina: 
restraint of marriage can extend to devises of land ; though 
on princi^^le there should be no distinction between devises 
and gifts or bequests in this respect.'^ 



CHAPTER II. 

EFFECT OF MARRIAGE ; PERSON OF THE SPOUSE. 

§ 33. Effect of Marriage ; Order of Legal Investigation. — 
When the parties to a lawful marriage have once completed 
the ceremony, or, as it is said^ have executed the contract of 
marriage, they are admitted into the marriage relation, and 
their mutual rights and obligations become at once bounded, 
protected, and enforced by the general law of husband and 
wife. What that law is will constitute the topic of dis- 
cussion in this and succeeding chapters of this part. We 
have already alluded to the confusion and uncertainty which 
exist at the present day, and particularly in many of the 
United States, in the law of husband and wife, owing to the 

opinion of James, L. J., and authorities disposal of property. No act of parlia- 

cited ; this interesting point being tlius ment or decision of a court, he ob- 

raised for the first time. served, established any distinction here 

Rights are equal as to marrying between the second marriage of man or 

again, so far as widow and widower are woman, and he knew of no reason for 

concerned, as all will readily admit, making it. 

The lower court was probably influ- i It is held that a gift to one's widow 
enced by considerations which medical on condition that she retire immediately 
men adduce, showing that marriage is into a convent is upon a good condition 
more essential to a man's continuous precedent. Duddy v. Gresham, 39 L. 
well-being than a woman's, and that a T. n. s. 48. Also, that it is a good con- 
widow, on the whole, is less likely to dition subsequent which forfeits a gift 
have sufficient reason for marr^'ing to one's brother in case he marries "a 
again than a man. But this argument, domestic servant," or one of lower de- 
if sound, is perhaps far-fetched, and gree, degrading his own family. Jen- 
James, L. J., on appeal, treated the ner v. Turner, 29 W. R. 99. 
subject more from the aspect of equal 2 Jones v. Jones, 1 Q. B. D. 279. 
rights, as between tlie se-xes, in tlie 

58 



CHAP. II,] PERSON OF THE SPOUSE. § 34 

transition period through which we seem to be passing from 
the marriage relation of the common law to that known to 
the civil law.^ Our subject will be most conveniently treated 
by taking up the common-law doctrine first, and thoroughly 
examining its principles ; then passing to the modern or 
civil-law doctrine for discussion in like manner. First, then, 
the rights and disabilities of marriage on the coverture scheme ; 
secondly, the rights and disabilities of marriage on the sepa- 
rate existence scheme, or with the innovations which equity 
and modern statutes have made. 

But since these rights and disabilities have varied little, ex- 
cept as to the wife's property, we may here investigate those 
general principles of the common law which concern the per- 
son of the spouse, once and for all. 

§ 34. Person of the Spouse ; Coverture Principle ; Husband 
Head of Family. — The general principle of coverture, as de- 
fined by Blackstone and other common-law writers, is this : 
that by marriage the husband and wife become one person in 
law ; that is to say, the very being or legal existence of the 
woman is suspended during the marriage, or, at least, is in- 
corporated and consolidated into that of the husband, under 
whose wing, protection, and cover she performs everything ; 
and is therefore called in the law-French Sifeme covert^ foemina 
viro co-operta ; is said to be covert-baron, or under the pro- 
tection and influence of her baron or lord ; and her condition 
during her marriage is called her coverture.^ For this reason 
the term applied to the relation of husband and wife in the 
old books is baron ayid feme. Upon this fundamental prin- 
ciple depend, at the common law, the general rights, duties, 
and disabilities of marriage. But this very definition shows 
inaccuracy, to say nothing of unfairness of application. Here 
are two conflicting notions : one that the existence of the 
wife is actually lost or suspended; the other that there is still 
an existence, which is held in subordination to the will of her 
lord and master, which last the w^ord coverture fitly expresses. 
It will appear in fact that while some of the wife's disabilities 

1 See Introductory, §§ 4-8. 

2 1 Bl. Com. 442 ; Co. Litt. 112 ; 2 Kent Com. 129. 

69 



§ 34 THE DOMESTIC RELATIONS. [PART II. 

seem based upon the one notion, others are based upon the 
latter, and probably more correct one. The wife's disabili- 
ties are deemed by Blackstone " for the most part intended 
for her protection and benefit." And he adds, by wa}^ of 
rhetorical period, " so great a favorite is the female sex of 
the laws of England ! " a proposition which his commentators 
have gravely proceeded to dispute and dissect, and, it must 
be added, not without good success.^ 

The husband's right of dominion is therefore fully recog 
nized at the common law. And never was the English 
doctrine, despite its failings, set forth in more terse and 
forcible language than in the words of Sir Thomas Smith : 
" The naturalest and first conjunction of two towards the 
making a further society of continuance is of the husband 
and wife, each having care of the family : the man to get, to 
travel abroad, and to defend ; the wife to save, to stay at 
home, and to distribute that which is gotten for the nurture 
of the children and family ; which to maintain God has given 
the man greater wit, better strength, better courage, to com- 
pel the woman to obey by reason or force ; and to the woman 
beauty, fair countenance, and sweet words, to make the man 
obey her again for love. Thus each obeyeth and command- 
eth the other •, and they two together rule the house so long 
as they remain in one." ^ 

In accordance with these principles, and perhaps, too, 
the laws of nature and divine revelation, the husband is the 
head of the family, and dignior persoiia. As to the more 
strictly personal consequences of the marriage .union, his 
rights and duties have suffered no violent change at our 
modern law. It is for the wife to love, honor, and obey : it 
is for the husband to love, cherish, and protect. The hus- 
band is bound to furnish his wife with a suitable home ; to 
provide, according to his means and condition of life, for her 

1 1 Bl. Com. 445, notes by Christian, from suspicion. See 2 Kent Com. 182, 

Hargrave, and others. It is probable closing sentence at foot of the page. 
that Blackstone used this expression in ^ Commonwealth of England, Book 

a strain of playful gallantry, not un- 1, ch. 2, quoted in Bing. Inf.. & Co v. 

common with lecturers. Even Chan- p. 184. 
cellor Kent's observations are not free 

60 



CHAP. II.J PERSON OF THE SPOUSE. § 35 

maintenance and support ; to defend her from personal insult 
and wrong ; to be kind to her ; to see that the offspring of 
their union are brought up with tenderness and care ; and 
generally to conduct himself, not according to the strict letter 
of the matrimonial contract, but in its spirit. So long as he 
does this, his authority is acknowledged at the common law ; 
and if the wife's wishes and interests clash with his own, she 
must yield.^ 

§ 35. Duty of Spouses to Adhere or Live Together. — Mar- 
riage necessarily supposes a home and mutual cohabitation. 
Each party has therefore a right to the society of the other. 
They married to secure such society. And the obligation rests 
upon both to live together — or, as the expression sometimes 
goes, to adhere. This is the universal law.^ Its observance 
is essential to the mutual comfort of husband and wife, and 
the well-being, if not the existence, of their children. But 
to this rule there are obvious exceptions. The wife is not 
bound to live with her husband where he is imprisoned, or 
has otherwise ceased to be a voluntary agent and to perform 
the duties of a husband. Nor if he is banished. For mar- 
riage does not force the parties to share the punishment of one 
another's crimes. This was the rule of the civil as it is that 
of the common law.^ And in general such causes as would 
justify divorce in any State justif}- the innocent party in 
breaking off matrimonial cohabitation likewise. But partial 
and temporary separation for purposes connected with the 
husband's profession or trade — as, for instance, where he is 
an army officer — constitutes no breach of the marriage re- 
lation unless continued beyond necessary and reasonable 
bounds, or accompanied by negligence to provide, while 
absent, for the maintenance of wife and family. And under 
some other circumstances cohabitation may be properly al- 



1 Lord Stowell observes that the law ver v. Oliver, 1 Hag. Con. 361 ; 4 Eng. 

intrusts the husband not only with a Ec. 429. 

certain degree of care and protection, - 1 Fras. Dom. Eel. 447,452. 

but also "with authority over his wife. 3 Co. Litt. 133 : 1 Bl. Com. 44.S ; 1 

He is to practise tenderness and affec- Eras. Dom. Rel. 448 ; 2 Kent. Com. 

tion, and obedience is her duty." Oli- 154. 

61 



§ 36 THE DOMESTIC EELATIONS. [PART II. 

lowed to cease for a time without involving the breach of 
marital obligations.^ 

§ 36. Breach by Desertion, &c. ; Duty of making Cohabitation 
Tolerable. — This subject is most commonly considered where 
redress is sought because one or the other party deserts ; 
such desertion formerly calling for the restitution of conjugal 
rights, but in these days furnishing rather a cause of divorce 
to the injured spouse, not to speak of the enlargement of an 
abandoned wife's rights and responsibilities, despite the rules 
of coverture. These matters, and particularly divorce for 
desertion, are found duly considered in other books, and the 
duty of matrimonial adherence more fully developed.^ We 
observe here that, in conformity to the world's customs and 
general principle, it is the wife's actual withdrawal from 
home which admits the less readily of a justifying explana- 
tion, and exposes the pair to scandal.^ But the husband may 
be at fault by making the home unfit for an honest wife to 
occupy with dignity, or by turning his wife out, or even by 
encouraging her to leave it when it was right that she 
should remain.^ It happens often that the husband instead 
forsakes the home, leaving the wife in it, such withdrawal 
being rightful or wrongful according to the circumstances.^ 

Mere frailty of temper on a wdfe's part, not shown in 
marked and intolerable excesses, would hardly justify a 
husband in withdrawing the protection of his home and 
society.^ But it is held that the wife's violent and out- 
rageous behavior justifies a husband in seeking divorce from 
bed and board, and, seemingly, in leaving her." The moral 
duty of living together involves, doubtless, the reciprocal 
obligation of making that life agreeable, according to the 
true status of the married parties ; but the extent of the 

1 See 2 Kent Com. 181; 1 Fras. * McCormick r.McCormick, 19Wis. 

Dom. Eel. 240 et seq. ; Ih. 447 ; Chre- 172. 

tien V. Husband, 17 Martin (La.), ^ McClurg's Appeal, 60 Penn. St. 

60. 300. See, as to divorce for desertion, 

- See Separation, Divorce, post; 1 Schonl. Hus. and Wife, §§ 515-523. 
Bish. Mar. & Div. §§ 771-810. « Yeatman v. Yeatman, L. R. 1 P. & 

3 Ih. ; Starkey v. Starkey, 21 N. J. D. 489. 
Eq. 135. ' Lynch v. Lynch, 33 Md. 328. 

62 



CHAP. II.] PERSON OF THE SPOUSE. § 37 

legal duty is not so easily definable. Upon the point of re- 
dress, in fact, codes widely differ ; the practical difficulty 
being, under our laws, that married spouses have little rem- 
edy until it comes to the last extremity of divorce.^ Mani- 
festations of bad temper on one side must necessarily weaken 
the duty of adherence on the other; extreme cruelty, or 
cruel and abusive treatment, is now frequently made a legal 
cause of divorce ; yet, at the same time, mutual forbearance 
and self-sacrifice are essential to the well-being of every 
household ; marriage, when rightly considered, working a 
harmony of character by the constant attrition to which the 
two natures are exposed. 

Under this head we may add that the duty of cohabitation 
or adherence is not fulfilled by literal or partial compliance. 
Thus the refusal of sexual intercourse and the nuptial bed, 
without good excuse, is a serious wrong which husbands, at 
all events, are disposed to construe into justifying ground 
for divorce.^ Living in the same house, but wilfully declin- 
ing matrimonial intimacy and companionship, is per se a 
breach of duty, tending to subvert the true ends of marriage. 
So, too, a husband who unreasonably withdraws cohabitation 
from his wife may be deemed guilty of legal desertion, even 
though he continue to support her.^ But sexual intercourse, 
the use of the same chamber, or the occupation of the same 
bed, should be mutually regulated with considerations of 
health as well as kindly forbearance ; and a husband who 
wantonly abuses his wife so as to inflict needless pain and in- 
jury upon her, and disregards her health and delicate organi- 
zation, is guilty of legal cruelty.* 

§ 37. The Matrimonial Domicile. — As there must be a 
home, so there is also a matrimonial domicile of the parties 
recognized by universal law. And the husband, as dignior 
persona, has the right to fix it where he pleases. The wife's 
domicile merges in that of her husband. Grotius says : 

1 See, as to divorce for cruelty, 3 Yeatman v. Yeatman, L. R. 1 P. & 
Schoul. Hus. & Wife, §§ 507-514. D. 489. 

2 See Schoul. Hus. & Wife, § 528 ; * lb. ; Moores v. Moores, 1 C. E. 
Southwick V. Southwick, 97 Mass. 327 ; Green, 275. See Sliaw v. Shaw, 17 
1 Bish. Mar. & Div. 5th ed. § 778. Conn. 180, criticised in 1 Bish. § 760. 

63 



§ 38 THE DOMESTIC RELATIONS. [PART II. 

" 2)e domicillo constituere jus est marito.''''^ But this applies 
only to the real domicile of the husband ; not to a fictitious 
place of residence which he may take up for a special pur- 
pose, or as an involuntary agent. In a genuine sense the 
domicile of the husband becomes that of the wife, and wher- 
ever he goes she is bound to go likewise ; not, however, unless 
his intent be bona fide and without fraud upon her person or 
property rights.^ In certain cases the wife may perhaps be 
said to acquire a domicile or legal forum for divorce and 
similar purposes.^ But the exception, if it exist, is limited 
by the necessity. To a wife living apart from her husband, 
no separate domicile is conceded for testamentary purposes.* 
Nor does a change of the wife's abode change the husband's 
or the matrimonial domicile.^ 

§ 38. Same Subject ; Husband's Right to establish Domicile. 
— Any contract, therefore, which the husband may make 
with his wife or her friends, before marriage, not to take her 
away from the neighborhood of her parents, is void. Public 
policy repudiates all contracts in restraint of such marital 
rights. There might be circumstances under which such a 
promise would be reasonable, but at best it can create a 
moral obligation only. The husband has the right to estab- 
lish his domicile at any time, wlierever he pleases, and the 
wife must follow him through the world.^ If she refuses to 
go with him, his own conduct being upright and honorable in 
the premises, she places herself in the wrong, and while she 
persists he is not bound to support and maintain her." 

But the courts of our day hesitate to apply a rule so appar- 
ently harsh as that announced in the last sentence. With 
the increasing regard for female privileges has grown up a 

1 2 Kent. Com. 181; 1 Fras. Dom. * Paulding's Will, 1 Tuck. (N. Y.) 
Rel. 240 et seq. ; lb. 447. 47. 

'■^1 Fras. Dom. Rel. 447, 448; 1 5 Porterfield y. Augusta, 67 Me. 556; 

Burge Col. & For. Laws, 260 ; Whar- Sclioles v. Murray Iron Works Co., 44 

ton Confl. Laws, §§ 43-47. See Von Iowa, 190; Johnson v. Johnson, 12 

Hoffman v. Ward, 4 Redf. Surr. 244 ; Bush, 485. 

Kingy. Foxwell, 3 Ch.D. 518; Schoul. c Hair v. Hair, 10 Rich. Eq. 163; 

Hus. & Wife, § 60 And see elemen- McAfee v. Kentucky University, 7 

tary works on Domicile. Bu.«h, 13-"). 

2 See Divorce, post. ' Babbitt v. Babbitt, 69 III. 277. 

64 



CHAP. II.] PERSON OF THE SPOUSE. § 38 

strong disposition to reduce the husband's right over the 
matrimonial domicile to a sort of divisum imperium. The 
question is not new, whether reasonable exceptions to this 
rule may not exist ; as, for instance, where the husband pro- 
posed to take the wife into an enemy's country while war 
was waging, or on a journe}^ perilous to her life.^ Such ex- 
ceptions may be justified, it is generally admitted, on the 
ground that the wife would be thereby exposed to bodily 
harm. But, whether the apprehension be that of personal 
violence, or ill health from the fatigue of a journey or the 
change of climate, little favor seems to have been shown to 
the wife either at the English or Scotch law, unless the cir- 
cumstances rendered a change of domicile on her part equiv- 
alent to a moral suicide.^ At the present day, a rule less 
stringent would doubtless be applied. A husband would not 
be permitted to remove his wife to some remote and unde- 
sirable place for the sake of punishing or tormenting her, or 
so as to compel her to stay alone where he did not mean to 
reside himself; for this would not be fixing the matrimonial 
domicile with honest intent. Nay, more, there are several 
recent decisions in this country which point to an obligation 
on the husband's part to show reasonable cause why his wife 
should follow him when he changes his abode.^ 

This later uncertainty in the law is unfortunate. Where 
a pair disagree in the choice of a home, either the right of 
decision must belong to one of them, or the court should sit 
as umpire. No one has suggested tliat the wife should choose 
the domicile, nor can judicial interference be well called in, 
except to divorce the parties. Yet, without a home in com- 
mon, of what avail is matrimony ? We cannot but regret that 
any of our courts should seem to legalize domestic discord ; 
that there should be good American authority to sanction the 
wife's refusal to accompany her husband on any such trivial 
pretext as " the dislike to be near his relatives." ^ Perhaps, 

1 Boyce v. Boyce, 23 N. J. Eq. 337. v. Powell, 29 Vt. 148. See Moffatt v. 

2 See 1 Eras. Dom. Rel. 448. Moffatt, 5 Cal. 280; Cutler v. Cutler, 2 

3 Bishop y. Bishop, ?.0 Penn. St. 412; Brews. (Pa.) 511. 

Gleason v. Gleason, 4 Wis. 64 ; Powell * Powell v. Powell, 29 Vt. 148. 

5 Qb 



§ 40 THE DOMESTIC RELATIONS. [PART 11. 

however, the harsh remedy usually sought to be applied in 
modern cases — divorce for the wife's wilful desertion — may 
tempt our tribunals to relax the old doctrine of conjugal 
obedience for her benefit. For, after all, the decision is in 
favor of prolonging the marriage relation.^ 

§ 39. Domicile relative to Alien and Citizen. — As corollary 
of the general proposition already announcer], it is held that 
an alien woman marrying with a citizen of the United States 
becomes, by virtue of such marriage, a citizen also, with the 
usual capacity as to purchase, descent, and inheritance ;2 
and that of aliens intermarried, if the husband becomes a 
naturalized citizen, the wdfe in like manner is naturalized, even 
though she has not yet migrated from her native country.^ 

§ 40. Change of Wife's Name by Marriage. — ]Marriage at 
our law does not change the man's name, but it confers his 
surname upon the woman. Until a decree of divorce, giving 
a married woman leave to resume her maiden name, goes into 
full effect, or widowhood is succeeded by a new marriage 
and another husband, she goes by her former husband's sur- 
name. This is English and American usage. And with this 
actual marriage name, it would appear that a wife can only 
obtain another name by reputation.* But in consideration 

1 The English rule as to the wife's when the husband asked her to return, 

duty of adherence still continues strict, and provided funds for her passage, but 

A wife petitioned for divorce on the she wrote that her liealth would not 

ground of her husband's desertion, permit her to do so. Here all corre- 

The facts showed that shortly after spondence and intercourse ceased until 

her marriage she went with her hus- 1856, when an allowance was again 

band to Jamaica, where he held an ap- effected through the intervention of a 

pointment from which he derived not relative ; this the husband continued 

more than £100 a year, and in conse- until 18G0, and then stopped it. He 

quence of his slender income she had appears to have led a loose life after 

to put up with some hardship. Her the wife's refusal to return. The court 

health sufTered, and in less than a year, lield that these circumstances did not 

namely, in 1846, she returned to Eng- constitute desertion on the husband's 

land. Her husband continued abroad, part, nor entitle her to divorce. Keech 

during the greater part of the time at v. Keech, L. R 1 P. & D. Gil (1868). 

.Jamaica, where he succeeded in getting Adultery being proved, however, di- 

a more lucrative appointment. When vorce was granted on that ground, 

she left him for England he acted - Luhrs v. Eimer, 80 N. Y. 171 ; 

kindly to her, promised to allow her Kelly r. Owen, 7 Wall. 496. 

£30 a year, but made no arrangement ^ Kelly i'. Owen, 7 Wall. 406 ; Head- 

fnr a permanent separation. Their man r. Rose, 6S Ga. 458. 

correspondence continued txntil 1851, ** Fendall v. Goldsmied, 2 P. D. 263. 

66 



CHAP. II.] PERSON OF THE SPOUSE. § 41 

of the rule that a person has the right to be known by any 
name he or she chooses, proceedings under the assumed name 
of a married woman have been upheld after judgment.^ 

§ 41. Right of one Spouse to the other's Society ; Suit for 
Enticement. — Each spouse is entitled to the society and com- 
panionship of the other. Inasmuch as the husband is thus 
entitled, he may recover his wife from any person who would 
withhold or withdraw her from him. This is a well-under- 
stood principle the world over.^ And the common law gives 
him the right to sue for damages all persons who seek to entice 
her away.^ But in such cases malice and improper motive 
are always to be considered ; and parents and near relatives 
stand on a different footing from strangers. So is the previous 
conduct of the husband towards his wife a material element 
to be considered ; since this, and not the interference of 
others, may have occasioned the separation. It is one thing 
to actively promote domestic discord, but quite another to 
harbor, from motives of kindness and humanity, one who seeks 
shelter from the oppression of her own lawful protector. 

Yet such conduct, whatever the motives, is, on the part of 
strangers, exceedingly perilous, generally open to miscon- 
struction, and never to be encouraged. They should leave 
the parties to their lawful remedies against one another. 
With parents it is different. There are several cases in the 
American reports where a father is not only held to be ab- 
solved from liability for sheltering his daughter, who has fled 
from a drunken and profligate husband, but even stimulated 
to do so. " A father's house," says Chancellor Kent, " is 
always open to his children ; and whether they be married or 
unmarried, it is still to them a refuge from evil and a conso- 
lation in distress. Natural affection establishes and conse- 
crates this asylum."* But this does not justify even a parent 

1 Clark V. Clark, 19 Ivans. 522. 21 Barb. 439 ; Barnes v. Allen, 30 Barb. 

2 1 Fras. Dom. Rel. 240, 241. 663. 

3 1 Chitty Pleading, 91 ; Hutche- * Hutclieson v. Peck, 5 Johns. 196. 
son V. Peck, 5 Johns. 196 ; Friend v. See also Friend i\ Thompson, Wright, 
Thompson, Wright, 636 ; Rabe v. 636 ; Bennett v. Smith, 21 Barb. 4.39 ; 
Hanna, 6 Ham. 530 ; Bennett v. Smith, Smith v. Lyke, 20 N. Y. Supr. 204 ; 

Payne v. Williams, 4 Baxt. 583. 

67 



§ 41 THE DOMESTIC RELATIONS. [PART II. 

in hostile interference against the husband ; for the latter's 
rights are still superior ; and the father must give up his 
daughter, and the marriage-offspring, whenever she wishes 
to return, unless tlie proper tribunal has decreed otherwise ; 
though he might, we suppose, by fair arguments, urged to 
promote her true good, seek to dissuade her from returning. 
The legal doctrine seems to be this, that honest motives may 
shield a parent from the consequences of indiscretion, while 
adding nothing to the right of actual control ; the intent 
with which the parent acted being the material point, rather 
than the justice of the interference; that a husband forfeits 
his right to sue others for enticement, where his own mis- 
conduct justified and actually caused the separation ; but 
that otherwise his remedy is complete against all persons 
whomsoever, who have lent their countenance to any scheme 
for breaking up his household.^ 

Differences of sex may account for a denial of the entice- 
ment suit to the wife, though her right to her husband's 
society is unquestionable. Woman claims protection where 
man acts for himself. Hence it is held that a wife cannot, 
either at common law, or under statutes not clearly enabling 
her, maintain an action against a third person for having, by 
wrongful acts, advice, and persuasion, induced her husband to 
abandon and become separate from and cease to maintain her.^ 

1 A curious case of this sort came rescinded the agreement, demanded 
before the Supreme Court of North his wife, and, upon refusal of the de- 
Carolina in 1849. The defendant had fendant to give her up, sued him in 
enticed away the wife of the plaintiff, damages The court sustained him ; 
The two afterwards entered into an pronouncing the contract to be "neither 
agreement that the defendant should in form or substance a contract for a 
keep the plaintiff's wife and child at separation, but simply a license to har- 
his own home, and should raise, edu- bor the wife and child, securing the 
cate, and provide for tlie child by ap- defendant against any legal responsi- 
propriating the portion of property bility for so doing until withdrawn." 
formerly intended for the mother's And it was further intimated that 
provision ; that he should not be liable such a contract was absolutely void as 
for having enticed the wife away ; and against public policy. Barbee v. Arm- 
that the plaintiff might visit his wife stead, 10 Ired. 530. See also 1 Burge 
and child not exceeding four or five Col. & For. Laws, 238, for a like doc- 
days at a time. The wife was not trine at the civil law. 
made a party to the contract, though ^ Van Arnam v. Ayers, 67 Barb, 
it appears to have been made with 544. But see Breman v. Paascli, 7 
her approval. The plaintiff afterwards Abb. (N. Y.) N. Cas. 249. 

68 



CHAP. II.] PERSON OF THE SPOUSE. § 44 

§ 42. Husband's Duty to Render Support. — This subject 
will be considered later in treating of the wife's necessaries, 
when it will also appear that our married women's acts tend 
to certain changes, not so much of principle as application, by 
extending the liability for family supplies to property such as 
wives now hold to their separate use. The general rule of 
law is that the husband, the spouse who holds and fills the 
purse, is bound to provide the family support and means of 
living. The style of support requisite — of lodging, food, 
clothing, and the like — is such as befits his means and con- 
dition of life. A wife is not usually justified in leaving her 
husband and the common home so long as the husband treats 
her kindly, and provides to the extent of his ability, even 
though retrenchment in the style of living may be needful 
from one cause or another.^ But reducing the wife's com- 
forts needlessly, and from sinister motives, she may justly 
complain of,^ and criminal prosecution with recognizance is 
found to aid the common law in compelling a competent hus- 
band to support his family. 

§ 43. Wife's Duty to render Services. — The wife's obliga- 
tion to render family services is at least co-extensive with 
that of the husband to support her in the family, these ser- 
vices and the comfort of her society being in fact the legal 
equivalent of such support.^ Hence, as it is held, the wife of 
an insane man cannot claim special compensation out of his 
estate for taking care of him, even though such were the 
express contract between herself and the guardian.* Doubt- 
less it would be bad policy to permit marital services on either 
side, however meritorious, to become a matter for money rec- 
ompense, and to strike a just balance is impossible. 

§ 44. Right of Chastisement and Correction. — Though either 
spouse may be the more dangerous companion, because of 
greater physique, daring, recklessness, or depravity, nature 

1 See Skean v. Skean, 33 N. J. Eq. 3 Randall ;;. Randall, 37 Mich. 563, 
148. per Cooley, J. ; Grant v. Green, 41 

2 Boyce v. Boyce, 23 N. J. Eq. 337. Iowa, 88. 

And see Necessaries, post ; also People * Grant v. Green, 41 Iowa, 88. 
V. Pettit, 74 N. Y. 320; Schoul. Hus. 
& Wife, § 67. 

69 



§ 44 THE DOMESTIC KELATIONS. [PAKT II. 

gives the husband the usual advantage. In a ruder state of 
society the husband frequently maintained his authority by 
force. The old common law recognized the right of moder- 
ate correction, which, according to Blackstone, was deemed a 
privilege by the lower orders in his day.^ The civil law went 
still further, permitting, in certain gross misdemeanors, vio- 
lent flogging with whips and rods.^ But since the time of 
Charles II. the wife has been regarded more as the compan- 
ion of her husband ; and this right of chastisement may be 
regarded as exceedingly questionable at the present day. 
The rule of persuasion has superseded the rule of force. 
Few cases of importance are to be found on this subject. 
In England, not many years ago, where a wife sought divorce 
from bed and board for cruelty, it was shown that the hus- 
band had spit upon her, pushed and dragged her about the 
room, and once slapped her face ; and upon this proof the 
divorce was granted.^ The right to inflict corporal punish- 
ment upon the wife has never been favored in this country, 
and its exercise would now generally justify proceedings for 
a divorce. Indeed, our latest State decisions emjjhatically 
deny that the right longer exists either in England or this 
country.* It may be added that the wife should not chastise 
her husband ; nor provoke harsh treatment by her own vio- 
lence, foul abuse, and misconduct.^ 



1 1 Bl. Com. 444, 445. In Adams v. Appeal, 57 Penn. St. 232; Fulgham v. 
Adams, 100 Mass. 365, Chapman, C. J., State, 46 Ala. 143; Owen v. btate, 7 
states the old form of the writ of sfcpp/j- Tex. Ajjp. 329; Gorman v State, 42 
cavit for protection of the wife against Tex. 221 ; 1 Bish. § 754, and cases 
her husband; viz., that the husband cited. In State v. Rhodes, 1 Phiil. (N. 
should not do other damage to her per- C.) 453, the right of moderate correc- 
son " than wliat reasonably belongs to tion was recently claimed. But the 
her husband for the purpose of the gov- opposite rule is announced in the later 
ernment and chastisement of his wife case of State v. Oliver, 70 N. C. 60. 
lawfully." Corporal chastisement is not justified, 

2 Flagellis et fustibus aci'iter verberare though the wife be drunk or insolent. 
uxorem. See 1 Bl. Com. 445. Commonwealth v. McAfee, 108 Mass. 

3 Saunders v. Saunders, 1 Rob. Ec. 458 ; Pearman v. Pearman, 1 Swab. & 
549. And see Schoul. Hus. & Wife, T. 601. 

§ 507; 1 Bish. Mar. & Div. 6th ed. ^ Knight v. Knight, 31 Iowa, 451, 
§§ 748, 754. and cases supra ; Prichard v. Priuhard, 
* Gholston V. Gholston, 31 Geo. 625 ; 3 Swnb. & T. 523 ; Trowbridge v. Car- 
Pillar V. Pillar, 22 Wis. 658 ; Edmonds' lin, 12 La. Ann. 882. 

70 



CHAP. II.] PEKSON OF THE SPOUSE. § 45 

But either spouse may use force in self-defence. And the 
husband may restrain his wife from acts of violence against 
others as well as himself in person or property, — most cer- 
tainly wherever the law makes him answerable in damages 
for her misbehavior ; ^ and may prevent her unwarrantable 
interference with the due exercise of his parental authority. 

§ 45. Husband's Right of Gentle Restraint. — The right of 
gentle restraint over the wife's person rests upon better 
authority than that of chastisement. This right, however, 
depends upon the proposition that the husband is dignior 
persona. And its exercise is often to be justified in the 
courts on the same grounds; namely, that the husband must 
answer to others for his wife's conduct. Blackstone says that 
in case of any gross misbehavior the husband can restrain 
his wife of her liberty. The later expression of Kent is that 
he may resort to "gentle restraint." ^ Strong instances for 
the exercise of this right occur where the wife has eloped 
with a libertine, and the husband wishes to bring her home ; 
or where she purposes an elopement, and he seeks to prevent 
it ; or, perhaps, where she goes recklessly into lewd company .^ 
Restraint may also be justified where the wife becomes insane, 
threatens the husband with danger, or wantonly destroys his 
property.^ 

So, too, the husband, by virtue of his marital autliority 
over his own household, might be allowed, if not by phj'sical 
force, at least by moral coercion, to regulate her movements 
so as to prevent her from going to places, associating with 
people, or engaging in pursuits, disapproved by himself on 
rational gi'ounds. This doctrine has been asserted in Eng- 
land ; and Mr. Fraser carries it to the extent of forbidding 
her relatives to visit her ; " for," he observes, " though the 



^ 2 Kent Com. 181 ; People v. Win- mour in the act of adultery is only 

ters, 2 Parker (N. Y. Cr.), 10; 1 Bl. guilty of manslaughter. See Regina v. 

Com. 445 ; Richards v. Richards, 1 Kelly, 2 Car. & K 814. 
Grant. 389. 4 g Mod. 22 ; 1 Stra. 477 ; In re Price, 

2 2 Kent Cora. 181 ; 1 Bl. Com. 445. 2 Post. & F. 263 ; State v. Craton, 

3 So strongly does the common law 6 Ire. 164. And see 1 Bish. Mar. & 
detest conjugal unfaithfulness, that the Div. § 756. 

hushand who kills his wife or her para- 

71 



§ 46 THE DOMESTIC RELATIONS. [PART XL 

wife may be very amiable, her connections may not be so." ' 
But this rule is to be laid down with great caution, and it 
may be considered especially unpopular in America. Mr. 
Justice Coleridge, in an English case, observes that the hus- 
band's right must not be exercised unnecessarily or with 
undue severity ; and that the moment the wife, by her return 
to conjugal duties, makes the restraint of her person unneces- 
sary, such restraint becomes unlawful.^ 

Our modern doctrine is that force, whether physical or 
moral, systematically exerted to compel the submission of a 
wife in such a manner, and to such a degree, and during such 
a length of time, as to injure her health and threaten disease, 
is legal cruelty .2 

§46. Regulation of Household, Visitors, &c. — From the 
common-law relation of husband and Mife it follows, as our 
last section indicates, that the general regulation of a house- 
hold is the privilege of the husband, who is its lawful head. 
The wife in this respect is to be viewed as his representative 
or executive officer, properly entrusted with domestic details, 
and particularly with the supervision of female menials and 
their M^ork. Husbands are sometimes blameworthy in the 
course of such regulation for pettiness, meanness, and incon- 
siderateness towards their wives. And yet households differ, 
and legal cruelty cannot readil}^ be predicated of such con- 
duct further than that, in divorce suits, misbehavior of this 
kind is frequently alleged in aggravation of actual cruelty 
otherwise practised, and so as to give body to the latter 
charge. It cannot be called cruelty or a breach of marital 
dut}^ justifying legal interference, for a married householder, 
however large his establishment, to take the settlement of 
the little bills upon himself,^ or the hiring and discharge of 
the servants. 

As to the question how far the wife is bound to observe the 

1 1 Fras. Dom. Eel. 459. This ob- 3 Kelly v. Kelly, L. R. 2 P. & D. 31 ; 
servation was made by Lord Stowell Bailey v. Bailey, 97 Mass 373. See 
in Waring v. Waring, 2 Hag. Con. 153 ; Schoul. Hus. & Wife, §§ 507-510. 

1 Eng. Ec. 210. * Evans v. Evans, 1 Hag. Con. 35, 

2 In re Cochrane, 8 Dowl. P. C. 631. 115. 

72 



CHAP. II.] PERSON OF THE SPOUSE. § 47 

husband's directions in entertainment, tlie choice of visitors, 
the arrangement of the rooms, and so on, the English rule is 
still strict, or, rather, permissive of the husband's sway. The 
wife is expected to conform to her husband's habits and 
tastes, even to his eccentricities, provided her health be not 
seriously endangered by so doing. And though he should 
restrict the calling list to a certahi set agreeable to himself 
alone, or interdict intercourse with her family, or prevent her 
from paying a visit to his own relatives, all of which we may 
Avell presume to be unkind and unreasonable, yet this alone is 
not sufficient ground for divorce.^ Nor, as it has been held 
ia this country, would divorce be granted simply because he 
had forbade her to atteud a particular church of which she 
was a member.^ Modern American precedent, however, on 
all these points is quite scanty. And whether the husband 
can allege misconduct against his wife, or obtain redress on 
his part if she rebels against oppressive discipline of this kind, 
is extremely doubtful. Whims and caprices of the husband, 
submission to which endangers the wife's health, need not be 
followed, and may even be relieved against as legal cruelty ; ^ 
and perhaps the former should be said of constraint upon 
religious worship as the worshipper's conscience dictates ; for 
the husband's right to manage his house and wife must doubt- 
less be understood to have rational limits. 

§ 47. Custody of Children. — The custody of children be- 
longed at common law to the father. Blackstone observes : 
" A mother, as such, is entitled to no power, but only to rev- 
erence and respect." * But by an English statute, passed in 
1839, the court of chancery is permitted to interfere and 
award the custody of children to such parent as may be 
deemed most suitable. Its special object was to enable mar- 
ried women who should be ill-treated by their husbands to 
assert their rights without the fear of being separated from 



1 Neeld v. Neeld, 4 Hag. Eo. 263 ; 2 Lawrence v. Lawrence, 3 Paige, 

D'Aguilar v. D'Aguilar, 1 Hag. Ec. 267. 

773 ; Waring v. Waring, 2 Hag. Con. 3 Kelly v. Kelly, L. R. 2 P. & D. 31 ; 

153 ; Shaw v. Shaw, 17 Conn. 189 ; Ful- 1 Bish. §'758. 
ton V. Fulton, 36 Mo. 517. ■•I Bl. Com. 453. 

73 



§ 48 THE DOMESTIC RELATIONS. [PART II. 

their offspring.^ In this country the tendency of legish^tion 
is to place the wife upon an equal footing with her husband 
in this respect, so that husband and wife together shall have 
in their children a joint interest and control, which the courts 
are to regard as distinct only when the welfare of these ten- 
der beings makes judicial intervention necessary.^ 

§ 48. Remedies of Spouses against each other for Breach of 
Matrimonial Obligations. — As no legal process can safely be 
enforced to compel husband and wife to live together, against 
the will of either, so the peace of society forbids that they 
should sue one another for damages for breach of the marital 
obligations. Here again is marriage sui generis, and not like 
other contracts. But the failure of the one to perform recog- 
nized duties may sometimes absolve the other from certain 
corresponding obligations. Thus, if the wife leaves her home 
without justifiable cause, the husband may refuse to support 
her.3 If the husband is cruel, or makes his home unfit for a 
chaste woman to live in (which is a species of cruelty), the 
wife may leave and compel him to support her elsewhere.* 
This is well recognized law. In general, however, such vio- 
lation of marital obligations is effectually punishable, not by 
enforcing them as in the old English suit for restitution of 
conjugal rights, which is not recognized in the United States, 
but by putting an end to the relation altogether.^ And it is 
in the modern proceedings for divorce that we now find the 
subject of marital obligations most frequently discussed, with, 
however, a bias towards the construction of the divorce 
statutes themselves. 

Husband and wife may be indicted for assault and battery 
upon each other.^ This is a means of redress not unfrequently 

1 2 & 3 Vict. c. 54; Warde v. Warde, ^ gee 1 Bish. Mar. & Div. § 771 ; 
2 Ph. 786. 1 Fras. Dom. Eel. 452; Adams v. 

2 See 790s;, Parent and Child, ch. 3, Adams, 100 Mass. 365; Briggs v. 
where the svibject is considered at Briggs, 20 Mich. 34; Schoul. Hus. & 
length, as more appropriate to that Wife, §§ 72-77. 

branch of the family law. ^ Bradley v. State, Walker, 156 ; 

s 2 Kent Com. 147 ; Manby v. Scott, State v. Mabrey, 64 N. C. 592; Whipp 
1 Mod. 124 , 1 Bl. Com. 448. v. State, 34 Ohio St. 87. 

4 Ilnnliston v. Smyth, 3 Bing. 127, 
And see post, as to wife's necessaries. 

74 



CHAP. II.] PERSON OF THE SPOUSE. § 50 

sought against cruel husbands, especially among those of low 
surroundings, where drunkenness is common, and religion 
treats divorce for cruelty with disfavor ; and a husband who 
beats his wife inexcusably may be convicted of this offence.^ 
So, too, the offending spouse may be bound to keep the peace. 
For unreasonable and improper checks upon her liberties, the 
wife may have relief on habeas corpus. But the writ is not 
available for the husband to secure the person of his wife, 
voluntarily absenting herself from his house.^ 

§ 49. The Spouse as a Criminal ; Private Wrongs and Public 
"Wrongs compared. — We shall find the doctrine of coverture 
affecting the liability of a married woman for her fraud or 
injury, so that her husband must respond toothers in damages 
for her.3 But here the private wrong and the public wrong 
stand contrasted. The immunity of the wife does not extend 
to criminal prosecutions. For, as Blackstone observes, the 
union is only a civil union.^ Or, to come more to the point, 
it would be cruel and unjust to punish one person for the 
crime of another, or even to compel the two to bear the 
penalty together ; while it would be impolitic, as well as un- 
just, to allow any relation which human beings, morally re- 
sponsible, might sustain with one another, to absolve either 
from public accountability. Here coverture as a theory con- 
tradicts itself, by leaving the wife answerable alone for her 
crimes, just as a single woman. The utmost the law can do 
is to furnish a presumption of innocence in her favor in cases 
where the coercion of her husband may be reasonably inferred. 

§ 50. Presumption of Wife's Coercion, hovr far carried. — This 
indulgence of presumed innocence, it is said, is carried so far 

1 In North Carolina, where the right vated case was lately considered a 

to moderately chastise has been so " cruel and unusual " punishment, 

reluctantly yielded, it is admitted that State v. Driver 78 N. C. 423. 
if the circumstances involve malice, ^ £'x/5a;-fe Sandiland, 12 E. L. & Eq. 

cruelty, or the infliction of permanent 40-3. See Adams v. Adams, 100 Mass. 

injury upon the wife, the husband may 365, as to the old writ of supplicavit 

properly be convicted of assault and formerly issued for protection of the 

battery. State v. Oliver, 70 N. C. 60. wife against her husband. 
But in this State trivial complaints are ^ See pout, c. 4. 
not favored. And a sentence to im- * 1 Bl. Com. 443. 
prisonment for five years in an aggra- 

75 



§ 50 THE DOMESTIC KELATIONS. [PART II. 

as to excuse the wife from punishment for theft, burglary, or 
(jtlier civil offences " against the laws of societ}^" when com- 
mitted in the presence or by the command of her husband ; 
but not so as to exculpate the wife for moral offences. For 
7nala prohibita she is not punished, for mala in se she is. 
Such a distinction is variable and somewhat shadowy ; the 
line seems to be drawn more wisely, if at all, between such 
heinous crimes as murder and manslaughter, and the lighter 
offences.^ And the better opinion is, decidedly, that at the 
most coercion is only a presumption, which may be rebutted 
by evidence to the contrary.^ 

The presumption, therefore, that in the less heinous crimes 
committed by the wife in her husband's presence, the wife 
acts under the husband's coercion, may in any case be repelled 
by suitable proof ; and when it is, the wife, as one acting sui 
Juris, must be held responsible for the wrong done by her in 
her husband's company. This is the true rule. Husband 
and wife may, therefore, both be indicted and convicted of a 
crime where it appears that both were guilty of the offence 
and the wife was not coerced.^ In most of the latest cases 
where the wife is indicted, the presumption of coercion has 
been regarded as something to be easily rebutted, especially 
in that numerous class of cases which relates to the illegal 
sale of liquors, a business in which married women frequently 
engage understandingly.* And where the crime is heinous, 
and the presence and command of the husband do not con- 
cur, a jury may readil}^ find the wife independently guilty.^ 

1 2 Kent Com. 11th ed. 150; 4 Bl. * See State ;;. Cleaves, 59 Me. 298; 
Corn. 28, 29, and Christian's notes ; 1 Commonwealth v. Tryon, 99 Mass. 
Hawk. P. C. b. 1, ch. 1, §9; 1 Russ. 442; Commonwealth v. Pratt, 126 
Crimes, 18-24. Mass. 462. 

2 2 Kent Com. 11th ed. 150; State ^ Presumption of coercion rebutted 
V. Parkerson, 1 Strobh. 169 ; 1 Russ. in a murder case, where wife had con- 
Crimes, 22; 2 Lew. C. C. 229; Uhl v. spired with her husband to commit 
Commonwealth, 6 Gratt.706 ; Wagener robbery. IMiller v. State, 25 Wis. 384. 
V. Bill, 19 Barb. 321; cases infra; 1 In People v. Wright, 38 Midi. 744, 
Greenl. Ev. 10th ed. § 28. where a wife, participating with her 

3 Goldstein i". People, 82 N. Y. 231 ; husband in a robbery, throttled the 
Mulvey v. State, 43 Ala. 316 ; State i'. victim and told him to keep still, while 
Potter, 42 Vt. 495 ; People v. Wright, her husband and a confederate rifled 
.38 Mich. 744; State v. Camp, 41 N. J. his pockets, a verdict of independent 
L. 300. guilt against iier wns sustained. 

76 



CHAP, n.] PERSON OP THE SPOUSE. § 52 

A wife who committed larceny by her husband's bare com- 
mand, when he was not present, has been held liable tliere- 
for ; and our present tendency is to refuse exculpation to the 
wife unless the husband commanded and was near enough 
besides to exert his marital influence upon her participation 
in accomplishing the particular crime. ^ 

§ 51. Offences against the Property of One Another. — Pub- 
lic policy forbids that either spouse should molest the person 
of the other with impunity .^ But as to the property of a 
spouse our law pursues a distinction. Accordingly, it is well 
established that the wife cannot be found guilty of stealing 
the goods of her husband, inasmuch as she resides with him 
and has possession of the goods b}' virtue of the marriage 
relation.^ And as .to the husband, whose legal possession 
and control of his wife's property during wedlock is far 
stronger, it is held that, not even upon the ground that a 
certain building was his wife's separate property, can he be 
convicted of arson for setting it on fire.^ 

§ 52. Mutual Disability to Contract, Sue, &c. — Husband 
and wife cannot make gifts or sales to one another during 
coverture, though the same parties might have done so before 
and in contemplation of marriage. Nor can they in other 
respects contract or enter into covenants with one another. 
Nor can one sue the other.^ But, as we shall hereafter see, 
equity and modern legislation introduce a different princi- 
ple. This disability of the spouses to sue one another is not 
merely the technical one that, under the old procedure, hus- 
band and wife must join, but is founded on the principle that 

1 Seiler v. People, 77 N. Y. 411 ; * Snyder v. People, 26 Mich. 106. 

State V. Camp, 41 N. J. L. 306; State Modern American statutes frequently 

V. Potter, 42Vt. 495; Commonwealth change this last rule. See Schoul. 

V. Lewis, 1 Met. 151 ; Commonwealth Hus. & "Wife, Appendix. And see >b. 

V. Feeney, 12 Allen, 560 ; Common- §§ 78, 79. 

wealth?;. Munsey, 112 Mass. 287; Ed- ^ Lord Hardwieke, in Lannoy v. 

wards v. State, 27 Ark. 493. See Duchess of Athoi, 2 Atk. 448 ; 1 Bl. 

further, Schoul. Hus. & Wife, §§ 76- Com. 442 ; 2 Kent Com. 129. The mar- 

78. ried women's acts in this country have 

^ See, <?. (7., as to remedies for assault clianged the common law greatly as to 

and battery ; supra, § 48. the mutunl riglit of suit. And see, as 

^ Queen v. Kenny, 2 Q. E. D. 307; to modern rules, c. 14, post, Transac- 

Lamphier v. State, 70 Ind. 317. tious between Husband and Wife. 

77 



§ 63 THE DOMESTIC RELATIONS. [PART U. 

husband and wife are one.^ There is sound policy, moreover, 
in discouraging the pair from making of their matrimonial 
bickerings a cause of action for damages against one another. 
However it may be, at this day, therefore, as to actions of 
contract, or proceedings in equity, arising out of their distinct 
property relations, the wife has no cause of Action in damages 
against her husband for a pure tort committed upon her per- 
son during the marriage relation, such as assault or false im- 
prisonment. And as the objection to such actions is not 
merely one of procedure, the fact that she has since jjrocured 
a divorce will not enable her to bring such a suit.^ 

§ 53. Mutual Disqualification as Witnesses. — One of the 
most important of the mutual disabilities of the marriage 
state is the disqualification of husband and wife to testify as 
witnesses in the courts for or against one another. Black- 
stone places this prohibition on a technical ground, — unity 
of the person ; for, he says, if they testify in behalf of one 
another, they contradict the maxim, " Nemo projjrid caiisd 
testis esse debet ;''^ and, if against one another, that other 
maxim, " Nemo tenetur se ipsum accusare." ^ He also sug- 
gests interest as another ground for the rule, and this doubt- 
less is a good one. But a more solid reason than either is 
that of public policy. "The happiness of the married state," 
says My. Greenleaf, " requires that there should be the most 
unlimited confidence between husband and wife; and this 
confidence the law secures, by providing that it shall be kept 
forever inviolable ; that nothing shall be extracted from the 
bosom of the wife which was confided there by the hus- 
band." 4 

So unyielding is this rule, that mutual consent will not 
authorize the breach of it.^ Whether the suit be civil or 



1 Blackburn, J., in Phillips v. Bar- lee v. McLoon, 10 Gray, 488, prefers to 
net, 1 Q. B. D. 430. consider that interest, more than policy, 

2 Phillips r. Barnet, 1 Q. B. D. 436 ; determined the question at common 
Abbott V. Abbott, 07 Me. 304. law. 

3 1 Bl. Com. 44.3. ^ 1 Greenl. Evid. § 340, and cases- 
* 1 Greenl. Evid. §2-54. See also 2 cited; Lord Ilardwicke, in Barker v. 

Kent Com. 178-180, to the same effect. Dixie, Cas. temp. Hardw. 204 ; Davis v. 

But apparently Chapman, J., in Peas- Dinwoody, 4 T. R. 679, per Lord Ken- 

78 



CHAP. II.] PERSON OF THE SPOUSE. § 53 

criminal, in law or at equity, it matters not. Form yields to 
substance in procedure, for the sake of excluding such testi- 
mony. And after coverture has terminated by death or 
divorce, still the prohibition lasts as to all which took place 
while the relation existed.^ The disability of the husband is 
in this respect as great as that of the wife.^ The rule applies 
alike to evidence of declarations made by husband and wife 
for or against one another, and to their testimony in person.^ 
Nor is a wife a competent attesting witness to a will which 
contains a devise to her husband;^ nor. one claiming as 
widow, the right to administer, competent to establish her 
marriage.^ Nor are the spouses competent witnesses for or 
asrainst one another in a suit for divorce on the ground of 
adultery, nor in proceedings for bigamy against one of them.^ 
And it is said that the law guards the marital confidence of 
silence as well as that of communication.' 

This rule of exclusion applies only to persons occupying 
the bona fide relation of husband and wife ; not, of course, to 
a mistress, or parties in immoral cohabitation. But at the 
same time the courts lean kindly towards prima facie mar- 
riages, and make no rigid investigation.^ The policy of the 



yon; contra, Pedley 17. Wellesley, 3 Car. ^ i Greenl. Evid. § 341; 6 T. R. 

&P. 558; 2 Kent Com. 179. 680; 7 T. E. 112; Kelly v. Small, 2 

1 Monroe v. Twistleton, cited in Esp. 716; Brown v. Wood, 121 Mass. 
Averson v. Lord Kinnaird, East, 192 ; 137 ; Schoul. Hus. & Wife, § 83. 
Doker v. Hasler, lly. & M. 198 ; Stein * Sullivan u. Sullivan, 106 Mass. 474. 
V. Bowman, 13 Pet. 223 ; 1 Greenl. The Massachusetts rule is contrary to 
Evid. § 337. See also Terry v. Bel- that of New York and Maine. See au- 
cher, 1 Bailey, 568 ; State v. Jolly, 3 thorities cited in this case. 

Dev. & Bat. 110; Crose v. Rutledge, 81 ^ Redgrave v. Redgrave, 38 Md. 93. 

111. 266 ; Wood v. Shurtleff, 46 Vt. 525 ; 6 Marsh v. Marsh, 29 N. J. Eq. 396 ; 

Barnes v. Camack, 1 Barb. 392. But Finn v. Finn, 19 N. Y. Supr. 339 ; Peo- 

see Dickerman v. Graves, 6 Cush. pie v. Houghton, 41 N. Y. Supr. 501. 

308. But see State v. Bennett, 31 Iowa, 24. 

2 See cases cited in 1 Greenl. Evid. "^ Goodrum v. State, 60 Ga. 509. 

§ 334. And see Turner v. Cook, 36 ^1 Greenl. Evid. § 3.39, and cases 
Ind. 129 ; Richards v. Burden, 31 Iowa, cited ; 2 Stark. Evid. 400 ; Bull. N. P. 
305; Rea v. Tucker, 51 111. 110; Sue- 287 ; Campbell v. Twemlow, 1 Price, 
cession of Wade, 21 La. Ann. 343. 81. So as to the wife of a freedman. 
The wife is not competent to prove an Hampton v. State, 45 Ala. 82. The rule 
alibi for her husband in a criminal of exclusion does not extend to a mis- 
prosecution. Miller v. State, 45 Ala. tress or the husband of one's paramour. 
24. Dennis v. Crittenden, 42 N. Y. 542 ; 

79 



§ 53 THE DOMESTIC RELATIONS, [PAIIT II. 

rule is evidently to treat as privileged communications all 
that passes between persons supposing themselves lavrfully 
married, and at all events not to prejudice the rights of the 
innocent party to an invalid marriage ; but the rule has not 
always been carried to such an extent. Some exceptions 
exist to the rule, founded mainl}' on considerations of public 
policy.^ 

There have been some important changes introduced into 
the law of evidence in some parts of this countr}- hy statute ; 
such as permitting interested persons to testify in their own 
suits. Where the old doctrine prevails, the exclusion of the 
husband, by reason of direct interest, operates to exclude his 
wife likewise.^ So the husband cannot be a witness in a con- 
troversy respecting his wife's separate estate, though in re- 
spect to other parties concerned be might be competent.^ 
The English Evidence Act of 1853, 16 & 17 Vict. c. 83 (which 
has been substantially enacted in some parts of this country), 
renders husbands and their wives competent and compellable 
witnesses for each other, except in criminal cases and in cases 
of adultery ; but neither shall be compelled to disclose com- 
munications made during marriage.* On the whole, the pre- 
vailing tendency of late years in both England and America is 
to regard domestic confidence or the bias of a spouse as of little 



Mann v. State, 44 Tex. 642 ; Hill v. erty. Musser v. Gardner, 66 Penn. St. 

State, 41 Ga. 484 ; Rickerstriker v. 242 ; Northern Line Packet Co. v. 

State, 31 Ark. 207 ; State v. Brown, 28 Shearer, 61 111. 263 ; Porter v. Allen, 54 

La. Ann. 279. See further, Schoul. Ga. 623 ; Wing c. Goodman, 75 111. 159. 

Hus. & Wife, § 83. As where the husband dealt with the 

1 2 Russ. on Crimes, 605, 606 ; 1 Bl. wife's separate property as her agent. 
Com. 443; 1 Greenl. Evid. § 343, and Chesley v. Chesley, 54 Mo. 347 ; Menk 
cases cited in note; Schoul. Hus. & i>. Steinfort, 39 Wis. 370. But cf. Robi- 
Wife, § 84, and cases cited. son v. Robison, 44 Ala. 227. 

2 1 Greenl. Evid. § 341 ; Ex parte 4 gge Ed. note to 10th ed. 2 Kent 
Jones, 1 P. Wms. 610; and cf. Stat. Com. 181 ; Stapleton v. Croft, 10 E. L. 
6 Geo. IV. c. 16, § 37. & Eq. 455 ; Barbat v. Allen, ih. 596 ; 

3 1 Burr. 424, per Lord Mansfield; Alcock v. Alcock, 12 ib. 354; Stater. 
12 Vin. Abr. Evidence B. And see Wilson, 30 N.J. 77 ; Farrelli'. Led well, 
note to 1 Greenl. Evid. § 341, witli au- 21 Wis. 182 ; Peaslee v. McLoon, 16 
thorities cited. In various States a Gray, 488 ; Metier v. Metier, 3 C. E. 
spouse, under statute, may be acompe- Green, 270. See Schoul. Hus. & Wife, 
tent witness to a greater or less e.xtent § 85 and n., where the modern cases 
with reference to wife's separate prop- are collated. 

80 



CHAP. III.] wife's debts AND CONTRACTS. § 54 

consequence compared with the public convenience of extend- 
ing tlie means of ascertaining the truth in all causes ; such 
facilities being increased, it is believed, by hearing whatever 
each one has to say, and then making due allowance for cir- 
cumstances affecting each one's credibility. By the modern 
enlargement of the wife's separate contract and property rela- 
tions, moreover, the spouses are presented, not so constantly 
as partakers of one another's confidence, but rather as per- 
sons having adverse interests to maintain, or else as principal 
and agent.^ 



CHAPTER III. 



EFFECT OF COVERTUEE UPON WIFE S DEBTS AND CON- 
TRACTS. 

§ 54. General Inequalities of Coverture at Common Law. — 
The property rights of married women are restrained at the 
common law. The husband yields to his wife no participa- 
tion whatever in his own property, whether acquired before 
or during the continuance of the marriage relation, except a 
certain right of inheritance to his goods and chattels, of which 
he can generally deprive her by his will and testament, and 
also dower in his real estate, which is her only substantial 

1 A statute providing for the admis- A wife cannot testify against her 

sion of interested parties as witnesses husband upon his trial for theft of her 

does not per se remove the disqualifica- property. Overton v. State, 43 Tex. 

tion of husband and wife. Lucas v. 616. 

Brooks, 18 Wall. 436 ; Gibson v. Com- Concerning testimony as to conver- 

monwealth, 87 Penn. St. 253 ; Schultz sations held by married parties when 

V. State, 32 Ohio St. 276 ; Gee v. Scott, they were alone, the rule of the com- 

48 Tex. 510. nion law, encouraging their confidence, 

If one marital party testifies for or is presumed to be unchanged unless 

against the other, under statute, cross- the statute is positive to that effect, 

examination must be permitted, even if Raynes v. Bennett, 114 Mass. 424; 

it compels the testimony to the opposite Westerman v. Westerman, 25 Ohio St. 

direction. Ballentine i'. White, 77 Penn, 500; Brown i;. Wood, 121 Mass. 137 ; 

St. 20; Steinburg v. Meany, 53 Cal. Wood v. Chetwood, 27 N. J. Eq. 311; 

425. Stanford v. Murphy, 63 Ga. 410. 

6 81 



§ 54 THE DOMESTIC RELATIONS. [PART II. 

privilege. In return for this, she parts with all control, for 
the time being, over her own property, whensoever and how- 
soever obtained, by gift, grant, purchase, devise, or inheri- 
tance, gives him outright her personal property in possession, 
and allows him to appropriate to himself those outstanding 
rights which are known as her cJioses in action, or all the rest 
of her personal property ; parts with the usufruct of her real 
estate, creating likewise a possible encumbrance upon it in the 
shape of tenancy by the curtesy ; and finally takes, if she sur- 
vives him, only her real estate, such of her personal property 
as remains undisposed of and unapi^ropriated, with a few 
articles of wearing apparel and trinkets called paraphernalia. 
She cannot restrain his rights by will. She is not allowed to 
administer on his personal estate in preference to his own kin- 
dred, though the whole of it were once hers ; while he can 
administer on her estate for his own benefit, and exclude her 
kindred altogether, even from participation in the assets. 
Thus unequal are the property rights of husband and wife by 
the strict rule of coverture. We speak not here of recent 
statutory benefits conferred upon the wife ; nor of that relief 
which equity affords in permitting property to be held to the 
wife's separate use, and giving her a provision from her chases 
in action, when the husband seeks its aid in appropriating 
them to his own use ; but of what is to be properly termed 
the common law of husband and wife.^ 

Some recompense is afforded to the wife for the loss of 
her fortune, in the rule that her husband shall pay her debts 
contracted while a feme sole ; that is, unmarried. And 
while coverture lasts he is liable for all just debts incurred in 
her support. He has even been held guilty of murder in the 
second degree when he has suffered her to die for want of 
proper supplies.^ The wife cannot make a contract so as to 
bind herself ; but in this, and other cases of express or implied 
authority, she can bind her husband, and so secure a main- 
tenance. That which cannot be enforced by the wife as a 

1 See 1 Bl. Com. 442-445, and notes, - Reg. v. Pluramer, 1 Car. & K. 

hy Christian, Hargrave, and others ; 2 600. 
Kent Com. 130-143 ; and chapters infra. 

82 



CHAP. III.] wipe's debts AND CONTRACTS. § 56 

matter of obligation is often attained at the common law in 
some indirect way.^ Nor can the wife sue and be sued in her 
own right. 

So, too, the husband is liable civilly for the frauds and in- 
juries of the wife, committed during coverture ; being sued 
either alone or jointly with her, in accordance with the legal 
presumption of coercion in such cases. And he must respond 
in damages, whether she brought him a fortune by marriage 
or not. But as we have seen, this rule does not apply to 
crimes, except that the law shows the wife a certain indul- 
gence where a similar presumption can be alleged on her 
behalf. On the other hand, the husband takes the benefit of 
such injuries as she may suffer, by suing with her and appro- 
priating the compensation by way of damages to himself.^ 

§ 55. Exception vrhere Wife is treated as Feme Sole. — We 
may add that the wife is relieved at the common law of the 
disabilities of coverture, and placed upon the footing of a 
feme sole, with the privilege to contract, sue and be sued, on 
her own behalf, in one instance, namely, where her husband 
has abjured the realm or is banished ; for he is then said to be 
dead at the law.^ And the necessity of the case furnishes 
the strongest argument for this exception. Another excep- 
tion early prevailed in certain parts of England by local cus- 
tom, — as that of London, — where the wife might carry on 
a trade, and sue and be sued in reference thereto as though 
single.* 

§ 56. Husband's Liability for Wife's Antenuptial Debts. — One 
of the immediate effects of marriage at the common law is that 
the husband at once becomes bound to pay all outstanding 
debts of his wife, — her debts diini sola, as they are called, — 
of whatever amount. This is a sort of recompense he makes 



1 See 1 Bl. Com. 442 ; 2 Kent Com. cautioned that tlie statement of the 
143-149. common law in this chapter is a state- 

2 I Bl. Com. 443; 2 Kent Com. 149, ment of doctrines which at the present 
150. day are found to he controlled and 

3 1 Bl. Com. 443 ; 2 Kent Com. 154. changed, to a great extent, hy modern 
See Separation, post. equity rules and legislation. See cs. 

* 1 Selw. N. P. 298 ; Bing. Inf. 2G1, 7-12,post. 
262. The modern practitioner is here 

83 



§ 56 THE DOMESTIC KELATIONS. [PAET II. 

for taking her property into his hands. But whether she 
brings him a fortune or not, his liability is not affected. She 
may owe large sums at the time of marriage and have nothing 
to offset them. She may have studiously concealed the exist- 
ence of the debts from her afBanced husband. But none of 
these considerations can avail to shield him. When married, 
she is married with her debts as well as her fortunes. As 
Blackstone observes, her husband must be considered to have 
" adopted her and her circumstances together." ^ This rule is 
moreover applied without discrimination as to individuals. 
An infant who marries is bound equally with an adult hus- 
band.2 j^ second husband is liable for the debts of his wife 
outstanding at the close of her widowhood, whether con- 
tracted prior to the first marriage, or while living separate 
from her first husband, and upon a separate maintenance, or 
after the termination of her first coverture and subsequent to 
the second;^ 

On the other hand, the husband remains liable for the debts 
of his wife dum sola only so long as coverture lasts. As his 
liability originated in the marriage, so it ceases with it. Hence 
if the obligation be not enforced in the lifetime of the wife, the 
surviving husband retains her fortune (if any) in his liands, 
and cannot be charged further with her debts either at law 
or in equity.* The wife's chases in action still unreduced to 
possession at the time of her death may, however, be reached 
by her creditors where he has received them as her adminis- 
trator, though only to the actual amount of such assets ; so 
that this would afford them but partial relief.'^ Nor can the 
husband's estate after his death be made liable for the wife's 
debts contracted while sole.^ Not even the parol promise 
made by the husband during coverture to pay his wife's debts 

1 1 Bl. Com. 443; 3 Mod. 18G; 2 * 2 Kent Com. 144. See Ch. Ca. 
Kent Com. 143-146 ; Macq. Hus. & 295, cited § 59, post. 

Wife, 39-41 ; Heard v. Stamford, 3 P. ^ Heard v. Stamford, 3 P. Wms. 

Wms. 409; Cas. temp. Talb. 173. 409; Cas. temp. Talb. 173; Morrow v. 

2 Roacli n. Quick, 9 Wend. 238; Whitesides, 10 B. Monr. 411; Day v. 
Butler v. Breck, 7 Met. 164. Messick, 1 Houst. 328. 

3 1 T. R. 5 ; 7 T. K. 348 ; Prescott 6 i Camp. 189 ; Curtton v. Moore, 2 
r. Fisher, 22 III. 390 ; Angel v. Felton, Jones Eq. 204. 

8 Johns. 149. 

84 



CHAP. III.] wife's debts AND CONTRACTS. § 57 

dum sola will create an additional liability for them on his 
part.^ The injustice of the rule in certain cases is obvious. ^ 

On general principles the husband is bound for the debt of 
his infant wife while sole just as much as though she were an 
adult, though only to the same extent as she would have 
been bound. Hence, where the demand is for necessaries 
furnished her while an infant, the husband, after marriage, 
becomes bound to pay it, since she would have been liable if 
she had not married. And the infancy of the husband him- 
self cannot be pleaded against this obligation.^ 

If the wife survives her husband, she becomes liable once 
more on her debts while sole. And this, too, though the 
means for extinguishing them may have already been squan- 
dered by her husband or placed beyond her reach.* Here is 
a great hardship. Coverture, therefore, seems to operate 
here as a temporary disability, and not so as to utterly merge 
the wife's identity. The husband becomes liable by mar- 
riage, not as the debtor, but as the husband ; the remedy 
being suspended, or rather shifted, during coverture. 

§ 57. Wife's Antenuptial Debts ; Subject continued. — The 
liability of the husband for his wife's debts while sole is 
limited strictly to legal demands ; that is, to such as she was 
bound to pay at the time of her marriage.^ And if a demand 
would not be enforceable against her remainincj sole, neither is 
it enforceable against her husband. But the promise or part- 
payment of the wife cannot take a debt out of tlie statute of 
limitations as against her husband, nor can the promise or 
part-payment of the husband as against his wife. Nor can 
their admissions charge one another.^ Their rights in this 
respect are separately regarded. 

All actions for the wife's debts while sole must be brought 

1 Cole V. Shurtleff, 41 Vt .^ll. 6 Ross v. Winners, 1 Halst. 306 ; 

2 See Schoul. Hus. & Wife, § 92. Sheppard v. Starke, 3Munf.29; Brown 
' Cole V. Seeley, 25 Vt. 220 ; Ander- v. Lasselle, 6 Blackf. 147 ; ]Moore v. 

son V. Smitli, 33 Md. 465; Bonney v. Leseur, 18 Ala. 606 ; Farrar v. Bessey, 

Reardin, 6 Bush, 34. 24 Vt. 89 ; Parker v. Steed, 1 Lea, 206. 

* Woodman v. Chapman, 1 Camp. But .see Lord Tenterden, in Humphreys 

N. P. 189, per Lord Ellenborough. v. Royce, 1 Mood. & Rob. 140, as to 

^ Cowley y. Robertson, 3 Camp. 438; admissions of the wife allowable in 

Caldwell v. Drake, 4 J. J. Marsh. 246. evidence after her death. 

85 



§ 58 THE DOMESTIC RELATIONS. [PART II. 

against husband and wife jointly, and not against either 
separately ; and judgment obtained by disregarding this rule 
will be reversed on error.^ The object is to retain the remedy 
in hand so that execution may be taken out against the 
proper party according to circumstances ; for, if the husband 
should die pending the suit, the wife, on her survivorship, 
would become liable.^ The rule as laid down in Eneland 
concerning the wife's personal liability on her debts dum sola 
is that coverture does not wholly relieve her from the con- 
sequences of judgment for the time being ; for that both may 
be taken on execution ; and when the wife is taken, she shall 
not be discharged unless it ajDpear that she has no separate 
property out of which the demand can be satisfied.^ This 
rule does not seem to have been recognized with such strict- 
ness in this country.^ But where the wife after marriage 
pays a portion of her debt, contracted while sole, from funds 
derived from her separate property, it is said that the hus- 
band will be bound by the act, unless he disaffirms it within 
a reasonable time.^ 

So far as rights of third parties are concerned, the liability of 
the husband for his wife's debts dum sola cannot be affected by 
any antenuptial contract between the two ; ^ nor of course by 
their agreement during coverture. The special contract of a 
husband with the creditor, relating to his wife's debt dum sola, 
furnishes a different cause of action to the creditor from that 
which arises out of the debt duyn sola taken by itself." 

§ 58. "Wife's General Disability to Contract. — In respect to 
her disability to contract, the wife may be considered, as Mr. 

1 1 Keb. 281 ; Alleyn, 72 ; Angel v. * Mallory v. Vanderheyden, 3 Barb. 
Felton, 8 Johns. 149; 7 T. R. 348; Ch. 9 ; s. c. 1 Comst. 453. 

Gage V. Reed, 15 Johns. 403; Gray v. & Hall v. Eaton, 12 Vt. 510. As lo 

Thacker,4 Ala. 1-36; Plainer r.Patchin, effect of husband's bankruptcy iipon 

19 Wis. 33.3. the wife's debts dum sola, see Sehoul. 

2 As to judgment and scire facias, Hus. & Wife, § 96. 

where the woman dies or marries after- 6 Harrison v. Trader, 27 Ark. 288. 

wards, &c., see Sehoul. Hus. & Wife, ^ Wilson v. Wilson, 30 Ohio St. 3Go. 

§ 96. The common law as to the wife's 

3 Tidd Pract. 9th ed. 1026; Sparkes antenuptial debts is changed consider 
V. Bell, 8 B. & C. 1; Newton v. Roe, 7 ably by our modern legislation See 
Man. & Gr. 329 ; Evans v. Chester, 2 M. post, cs. 11, 12 

& W. 847. 

86 



CHAP. III.] wife's debts AND CONTRACTS. § 58 

Bingham has remarked, worse off at the common law than 
infants ; for the contracts of an infant are for the most part 
voidable only, while those of married women are, with few 
exceptions, absolutely void. But the disabilities incident to 
these two conditions rest upon different grounds ; for the 
disabilities attached to infancy are designed as a protection 
for the inexperienced against the fraudulent, while those 
incident to coverture are the simple consequence of that sole 
or paramount authority which the law vests in the husband.^ 
Common sense teaches that married women have sufficient 
discretion to act for themselves, and stand on a different foot- 
ing from young children ; this the English law fully recog- 
nizes, irrespective of equity rules, by empowering all women 
to contract up to the very moment of their marriage, and 
from the time when coverture ceases. At most it could only 
be said that a woman, wliile living in the married state, was 
peculiarly subject to influence from the other sex, which 
might be exerted to her disadvantage. 

The husband may make in his own right such contracts as 
he pleases, as well during coverture as before. He is never 
presumed to act under the wife's influence.'-^ But the wife 
by coverture becomes disqualified and legally irresponsible in 
this respect, except in the single instance wliere her husband 
is civiliter mortuus, as we have already stated ; ^ and in cer- 
tain localities where the separate trade custom applied.'^ But 
otherwise her incapacity at the common law is total. 

To illustrate the wife's disability. She cannot earn money 
for herself.^ She cannot, jointly with her husband or alone, 
sign or indorse a promissory note, so as to bind herself ; ^ nor 
execute a bond or otlier instrument under seal ; '' nor pur- 
chase on her own credit ; nor agree to keep a money deposit 

1 See Bing. Inf. & Cov. 181, 182, 6 Mason v. Morgan, 2 A.l. & El. 30; 
Am. ed. ; 2 Kent Com. 150; post, In- Snider i-. Ridgeway, 49111. 522; O'Dailj 
fancy. v. Morris, 31 Ind. Ill ; Dollner i>. 

2 "City Council v. Van Roven, 2 Mc- Snow, 16 Fla. 86 ; Robertson v. Wil- 
Cord, 465. burn, 1 Lea, 633 ; Brown v. Orr, 29 

3 5«/jra, § 55. Cal. 120; Tracy v. Keith, 11 Allen, 
* lb. 214. 

6 Offley V. Clay, 2 Man. & Gr. 172 ; ' Whitworth v. Carter, 43 Miss. 61 ; 

c. 5, post. Huntley v. Whitner, 77 N. C. 392. 

87 



§ 59 THE DOMESTIC EELATIONS. [PAET II. 

payable on demand ; nor be surety for another ;i nor other- 
wise make a valid contract.^ She is permitted, as we shall 
hereafter see, to pass her real estate by joining in a deed with 
her husband ; but when she does so she is not bound by her 
covenants, nor was her separate conveyance (except by some 
matter of record) of any effect whatsoever.^ Her covenant 
in a mortgage of her husband's property,* or title bond, or 
executory contract to convey land,^ is equally ineffectual. A 
sheriff's sale of her land upon her judgment note, given as 
security for her husband, may be set aside as void.^ In all 
these cases the wife is considered as under the husband's 
dominion, and unable to act for herself.' On the same prin- 
ciple it is held that a married woman cannot bind herself by 
her contract to convey estate which is devised to her in trust 
for sale.^ The executory and unacknowledged contract of a 
married woman, being void as a contract, cannot be supported 
as against her on the ground of estoppel.^ 

§ 59. Wife's Disability to Contract extending beyond Cover- 
ture. — So far is this doctrine of the wife's contract disability 
carried, that the agreement of a widow, after her husband's 
death, to pay a debt which she had contracted during cover- 
ture, and which consequently was not binding upon herself, 

1 Swing V. Woodruff, 41 N. J. L. * Kitchell v. Mudgett, 37 Mich. 81. 
469; Gosman v. Cruger, G9 N. Y. 87. ^ Stidham v. Mattliews,29 Ark. 0-50; 

2 Avery v. Griffin, L. R. 6 Eq 600 ; Oglesby Coal Co. v. Pasco, 7'J 111. 
Tobey v. Smith, 15 Gray, 535 ; Gould- 164. 

ing V. Davidson, 28 Barb. 438 ; Lee v. ^ Doyle v. Kelly, 75 111. 574. 
Lanahan, 58 Me. 478. But as to sepa- "^ Marshall v. Rutton, 8 T. E. 545 ; 
rate estate and modern legislation, see 11 East, 301 ; 2 B. & P. 22(j ; 3 B. & 
post, cs. 10, 11. Her judgment bond is C. 291; Jackson v. Vanderheyden, 17 
void. Schlosser's Appeal, 58 Penn. St. Johns. 167; Benjamin v. Benjamin, 15 
493. Likewise her warrant of attorney Conn. 347; Ayer v. Warren, 47 Me. 
to confess judgment. Swing r. Wood- 217 ; Young v. Paul, 2 Stockt. 401 ; 
ruff, 41 N.J. L. 469; Shallcross v. Stillwell v. Adams, 29 Ark. 34(3; Stock- 
Smith, 81 Penn. St. 32. ton v. Farley, 10 W. Va. 171 ; Savage 

3 2 Bl. Com. 293, 351,364, and notes v. Davis, 18 Wis. 608. Al iter, as to 
by Chitty and others ; Robinson v. Rob- modern legislation, &c., cs. 10, 11, post. 
inson, 11 Bush, 174; Ferguson r. Reed, 8 Avery v. Griffin, L. R. 6 Eq. 
45 Tex. 574; Botsford r. Wilson, 75 606. 

111. 133 ; 2 Kent Com. 160-154 ; //-. 167, ^ Wood v. Terry, 30 Ark. 385 ; Og- 

168. See post, ch. 6. Rule applied to lesby Coal Co. i;. Pasco, 79 111. 164. 

a land patent signed by husband and But cf. Norton v. Nichols, 35 Mich, 

wife. Shartzer v. Love, 49 Cal. 93. 148. 



CHAP. III.] wife's debts AND CONTKACTS» § 60 

but, if at all, upon her husband, has been treated as void, 
on the ground that the promise was without consideration 
and only morally binding.^ But in another case it was held 
a sufficient consideration to support a widow's promissory 
note, that it had been given by her, out of respect for her late 
husband's memory, to secure a debt due by him.^ As a rule, 
of course, the widow cannot be compelled to make good an 
engagement or fulfil a contract which she entered into while 
under the disability of coverture.^ 

Lord Nottingham, in a case mentioned in the old reports, 
once refused to absolve a husband, after his wife's death, 
from payment for goods which she had purchased prior to the 
marriage, but never paid for, there being proof that he had 
actually received the goods, the debt being antenuptial. His 
lordship declared with earnestness that he would change 
the law on that point.* But in this case it appears that the 
goods did not actually come to the husband's hands until 
after the wife's death. And the authority of this decision 
has since been greatly impaired.^ In equity the creditors of 
the first husband may, where his wife was administratrix, 
follow the assets in the hands of a second husband, although 
the wife be dead ; and at law during her life.*^ 

The contract of a married woman, being void, is likewise 
unenforceable against her after divorce, notwithstanding her 
subsequent promise, when once more sui Juris; for such 
promise is without consideration.'^ But after the death of her 
spouse, or her divorce from him, her promise, founded on a 
new consideration, may be enforced against her. 

§ 60. Wife binds Husband as Agent. — But although the 
wife, as such, has no power to make a contract, she is allowed 
at the common law to bind her husband in certain cases as 
his agent. Her authority may be general or special, express 

1 Meyer v. Hawortli, 8 Ad. & El. & lb. ; 1 Eq. Cas. Abr. 60. 

467 ; Waul v. Kirkman, 25 Miss. 609 ; 6 Cha. Ca. 80 ; 1 Vern. 309 ; 2 Vern. 

Lennox v. Eklred, 1 Thomp. & C. 140. 61, 118; 1 Eq. Cas. Abr. 60, 61 ; Cro. 

2 1 Cr. & J. 2.31 ; Tyr. 84. See also Car. 603 ; 1 Roll. Abr. 85. See Ma- 
Nelson V. Searle, 3 Jur. 290. gruder v. Darnall, 6 Gill, 269. 

3 Ross V. Sing:leton, 1 Del. Ch. 149. ^ Putnam v. Tennyson, 50 Ind. 
* Clia. Ca. 295. 456. 

89 



§ 61 THE DOMESTIC RELATIONS. [PART 11. 

or implied. Blackstone says that the power of the wife to act 
as attorney for her husband implies no separation from, but 
is rather a representation of, her lord.^ Whenever the hus- 
band expressly empowers his wife to make a contract for 
him, he will be bound as in the case of any other principal. 
And he may bind himself in like manner for any unauthorized 
contract proceeding from his wife as agent, by subsequent 
conduct on his part amounting to ratification. But greater 
difficulty arises in determining his liability upon contracts 
where the authority is not express but only implied. How far 
does the law go in presuming against the husband, and what 
are the proper limits of an implied authority in the wife to 
bind him by her contracts ? This is an important inquiry 
which we shall presently consider. 

But let us premise, as a suitable conclusion from the pre- 
ceding sections, that the husband may be bound in one of 
two ways, either upon his own contract or upon that made 
by the wife as his agent; and hence he may be held liable 
because the debt or obligation was his own, or because his 
wife represented him. The natural effect of his joining with 
her in executing a contract or instrument would be to render 
it his individual obligation, since he is sui juris ;^ while if 
she executed alone and without a suitable agency on his 
behalf, the obligation would be altogether void. 

§ 61. Wife's Necessaries ; Foundation of Husband's Obliga- 
tion. — On the important principle of the wife's agency rests 
the liability of the husband, at common law, in contracts 
made by the wife for necessaries. It is a clear obligation 
which rests upon every husband to support his wife ; that is, 
to supply her with necessaries suitable to her situation and 
his own circumstances and condition in life. Notwithstand- 
ing a man married unwillingly, — as, for instance, to avoid a 
prosecution for seduction or bastardy, — he is bound to sup- 
port her.'5 But though this obligation appears to rest on the 
foundation of natural justice, the comnion law assigns, as the 
true legal reason, that she may not become a burden to 

1 1 Bl. Com. 442; 2 Man. & Gr. 172; 2 Dresel v. Jordan, 104 Mass. 497. 

Mizen /•. Pick, 3 M. & W. 481. 3 state v. Ransell, 41 Conn. 433. 

90 



CHAP. III.] wipe's debts AND CONTRACTS. § 61 

the community. So long as that calamity is averted, the wife 
has no direct claim upon her husband under any circum- 
stances whatever ; for even in the case of positive starvation 
she can only come upon the parish for relief; in which case 
the parish authorities will insist that the husband shall pro- 
vide for her to the extent of sustaining life.^ If a husband 
fail in this respect, so that liis wife becomes chargeable to any 
parish, the statute 4 Geo. IV. c. 83, § 3, says that "■ he shall 
be deemed an idle and disorderly person, and shall be punish- 
able with imprisonment and hard labor." ^ And this obliga- 
tion extends to the whole family, with such modifications as 
will be more properl}' noticed in treating of parent and child. 
If a man marry a widow he is not bound to maintain her 
children ; unless he holds them out to the world as part of 
his own family .3 But by the statute 4 & 5 Will. IV. c. 76, 
§ 57, the husband is required to maintain, as part of his 
family, any child or children, till the age of sixteen, legitimate 
or illegitimate, that his wife may have at the time of entering 
into the contract.^ 

To enforce these marital obligations the law takes a cir- 
cuitous course ; and the wife may secure herself from want 
against a cruel and miserly husband, of ample means to sup- 
port her, by pledging his credit and making such purchases 
as are needful, on the strength of an implied authority for 
that purpose. Here, all other things being equal, it is pre- 
sumed that she was her husband's agent ; and no direct 
permission need be shown. Indeed, wherever the facts are 
clear that those articles were actually needed, and that the 
husband failed to supply them, this presumption is carried so 
far as to control even the express orders of the husband him- 
self. The articles for which a wife is allowed to pledge her 
husband's credit as his presumed agent are designated at 
common law as necessaries. 

The wife's necessaries are such articles as the law deems 

1 Rex V. riintan, 1 B. & Ad. 227 ; * 4 T. K. 118 . Cooper v. Martin, 4 
7 Ad. & El. 819. East, 76 ; 3 Esp. N. P. 1 ; Hall /•. Weir, 

2 See Macphers. Lif. 42, 43. 1 Allen, 261. See post, Parent & 
8 Attridge v. Billings, 57 111. 489. Child. 

91 



§ 61 THE DOMESTIC RELATIONS. [PAKT II. 

essential to her health and comfort ; chiefly food, drink, lodg- 
ing, fuel, washing, clothing, and medical attendance. They 
are to be determined, both in kind and amount, by the means 
and social position of the married pair, and must therefore 
vary greatly among different grades and at different stages of 
society.^ Thus a large milliner's bill might not be deemed 
necessaries for the wife of a laborer, while a wealthy merchant 
would be bound to pay it. So, too, necessaries to-day are 
not what they were fifty years ago. Nor is the ordinary test 
to be found in the real situation and means of the married 
parties ; for this a tradesman cannot be expected to investi- 
gate ; but in their apparent situation, the style they assume, 
and the establishment they maintain before the world; which 
every husband is supposed to regulate with sufficient pru- 
dence.^ Articles, too, may be of a kind which the law pro- 
nounces necessaries, and j^et a wife may be so well supplied 
as not to need the particular articles in question, — a distinc- 
tion of some consequence. The decisions in the books, relat- 
ing to necessaries, are therefore somewhat confusing, as might 
be expected ; the more so since the dividing line between 
law and fact, in such cases, is not marked with distinctness. 
Sometimes the court decides whether articles are necessary, 
sometimes a jury. The ordinary rule is that the court shall 
decide whether certain articles are to be classed as neces- 
saries ; while the jury may determine the question of amount, 
and apply this classification to the facts ; ^ but this rule, 
though seemingly precise, is found difficult in its practical 
application.^ 

1 2 Bright Plus. & Wife, 7, 8 ; Sel. lowing articles classed as necessaries 

N. P. 260; 6Car. & P. 419; Cro. Jac. for the wife: Board and lodging. 

257, 258; n. to 2 Kent Com. 10th ed. Medicines, medical attendance, and rea- 

146; ib. 138, 139; 1 Bl. Com. 442. sonable expenses during illness. Har- 

~ Waithman v. Wakefield, 1 Camp, ris v. Lee, 1 P. Wms. 4o8 ; Mayliew v. 

120. Thayer, 8 Gray, 172 ; Cothran v. Lee, 

3 Renaux v. Teakle, 20 E. L. & Eq. 24 Ala. 380; Webber v. Spannhake, 2 

345 ; 1 Pars. Contr. 241 ; Hall I,-. Weir, Redf. (N. Y.) 258. Furniture of a 

1 Allen, 261 ; Parke v. Kleeber, 37 house for a wife to wliom the court liad 

Penn. St. 251 ; Raynes v. Bennett, 114 decreed £380 a j'earas alimony. Hunt 

Mass. 424 ; Phillipson v. Hayter, L. R. r De Blaquiere, 5 Bing. 650. Silver 

6 C. P. 38. fringes to a petticoat and side saddle 

* Among the cases we find the fol- (value £94) furnished to the wife of a 

92 



CHAP. III.] wife's debts AND CONTRACTS. 



62 



§ 62. Wife's Necessaries ; Living together or separate. — The 
husband's liability for necessaries may arise in two distinct 



serjeant-at-law. Skin. 349. "Watches 
and jewelry such as befits the style of 
dress which the husband sanctions, 
especially if not wholly ornamental. 
Eaynes v. Bennett, 11-t Mass. 424. 
Reasonable legal expenses incurred by 
a wife who had been deserted by her 
husband, preliminary and incidental to 
a suit for restitution of her conjugal 
rights, and in obtaining professional 
advice as to the proper method of deal- 
ing with tradesmen who were pressing 
their bills. Wilson v. Ford, L. R. 3 
Ex. 63. Reasonable legal expenses in 
defence of a prosecution instituted 
against a wife by her husband (Warner 
V. Heiden, 28 Wis. 517), and even, in a 
just cause, for prosecuting him. Shep- 
herd V. Mackoul, 3 Camp. 326 ; Morris 
V. Palmer, 39 N. H. 128. A horse 
worth §45 for the invalid wife of a 
miller earning $30 per month, in order 
that she might take exercise as advised 
hy a physician ; the question of suit- 
ableness, however, being left to the 
jury. Cornelia v. Ellis, 11 111. 584. 
The cost of divorce proceedings, in- 
cluding fees of a proctor, where the 
wife had reasonable ground for insti- 
tuting them, but not otlierwise. Brown 
V. Ackroyd, 34 E. L. & Eq. 214 ; Porter 
V, Briggs, 38 Iowa, 166. But cf. this 
note, post. A set of false teeth, and rea- 
sonable dentistry. Freeman v. Holmes, 
62 Ga. 556 ; Oilman v. Andrus, 28 Vt. 
241. Household supplies reasonable 
and proper for tlie ordinary use of a 
family, although the wife receives the 
earnings of two daughters living with 
her. Hall v. Weir, 1 Allen, 261. Per- 
haps a piano. Parke v. Kleeber, 37 Penn. 
St. 251. But see Chappell v. Nunn, 41 
L. T. 287. 

But, on the other hand, the follow- 
ing articles have been held not to be 
necessaries : Articles of jewelry for the 
wife of a special pleader. Montague v. 
Benedict, 3 B. & C. 631. A deed of 
separation. Ladd v. Lynn, 2 M. & W. 



265. The expense of an indictment by 
the wife for assault. Grindell v. God- 
mond, 5 Ad. & El. 755. Especially if 
the grounds for instituting criminal 
proceedings did not appear reasonable. 
Smith V. Davis, 45 N. H. 566. Counsel 
fees in a suit for divorce or to enforce 
a marriage settlement, whether the wife 
be plaintiff or defendant. Pearson v. 
Darrington, 32 Ala. 227 ; Thompson v. 
Thompson, 3 Head, 527 ; Schoul. Hus. 
& Wife, § 105 ; Dow v. Eyster, 79 111. 
254 ; Whipple r. Giles, 55 N. II. 139. 
Legal expenses and fees are sometimes 
chargeable against a husband, in cases 
of this sort, because the statute says 
so. Thomas r. Thomas, 7 Bush, 665; 
Warner v. Heiden, 28 Wis. 517 ; Glenn 
V. Hill, 50 Ga. 94. 

Decisions differ; but the weight of 
authority is that an action at law for 
his fees cannot be maintained by a soli- 
citor who prosecutes or defends on the 
wife's behalfagainst her husband. Fees 
and retainers for more solicitors than 
were needful cannot be allowed. Pas- 
sage tickets in general to enable the wife 
to travel, except perhaps for a clearly 
needful purpose. Knox v. Bushell, 3 
C. B. N. s. 334. Medical attendance 
rendered, without the husband's as- 
sent, by a quack doctor. Wood v. 
O'Kelly, 8 Cush. 406. Though when 
a husband disputes a bill for medical 
attendance on the ground of malprac- 
tice, or an unnecessary surgical oper- 
ation, the burden is on him to show it. 
M'Clallan v. Adams, 19 Pick. 333. 
" Religious instruction," or the rent of 
a church pew. St. John's Parish v. 
Bronson, 40 Conn. 75. Articles, in 
short, which are extravagant and alto- 
gether beyond the husband's circum- 
stances and degree in life. Canc}^ v. 
Patton, 2 Ashm. 140. See Phillipson 
V. Hayter, L. R. 6 C. P. 38. 

Money lent the wife for the pur- 
chase of necessaries, or for other pur- 
poses however suitable, is not classed 

93 



§ 63 THE DOMESTIC RELATIONS. [PAET II. 

classes of cases : first, where the wife lives with him ; second,^ 
where slie lives separate from him. And where the wife 
lives with him, the husband's assent to her contract for neces- 
saries is inferred from circumstances which show authoiity 
actually conferred, or else the law supplies an assent for her 
benefit where he has improperly refused or neglected to pro- 
vide for her wants. Where they live apart, separation is 
either voluntary or involuntary. Let us consider these two 
classes of cases separately. 

§ 63. "Wife's Necessaries where Spouses live together. — 
First, then, as to a husband's liability where his wife lives 
with him. Here we are met at the outset by the broad pre- 
sumption of assent which cohabitation of itself furnishes. 
The simple circumstance that husband and wife are living 
together has been generally held sufficient, when nothing to 
the contrary intervenes, to raise a presumption that the wife 
is rightfully making such purchases of necessaries as she may 
deem proper.^ Whoever then supplies her in good faith, as 
the law has usually been understood, need inquire no further, 
but may send his bill to her husband. This rule is a fair one ; 
for it is not to be supposed that a husband will go in person 
to buy eveiy little article of dress or household provision 
which may be needful for his family. As Lord Abinger ob- 
served, a wife would be of little use to her husband in their 
domestic arrangements, if his interference was always to be 
deemed necessary.^ Accordingly, if an action be brought 
against the husband for the price of goods furnished under 

with necessaries at the common law ; his loan is properly applierl. Harris v. 
probably because husbands do not often Lee, 1 P. Wms. 482; Walker v. Simp- 
confer an authority liable so easily to son, 7 W. & S. 83 ; Kenyon v. Farris, 
abuse. Walker v. Simpson, 7 W. & S. 47 Conn. 510; Deare ?'. Soutten, L. R. 
83; Stone v. McXair, 7 Taunt. 432; 9 Eq. 15L See Schullhofer i'. Metzger, 
Stevenson v. Hardy, 3 Wils. 388 ; Knox 7 Rob. (N. Y.) 576. 
V. Bushell, 3 C. B. n. s. 3.34. But equity i 2 Bright Hus. & Wife, G, 7; Bull, 
takes a view more consonant to the N. P. 134; Salk. 113; 7 Car. & P. 756. 
wants of a distressed wife, and allows See also 1 Ventr. 42; 2 Vent. 155; 
the person lending tlie money to stand Montague v. Benedict. 3 B. & C. 631 ; 
in the stead of tlie tradesman, and to Manby v. Scott, 1 Mod. 124 ; 1 Sid. 
recover if the money was actually 109; 1 Roll. Abr. 351, pi. 5 ; Freestone 
used for necessaries ; thus leaving him v. Butcher, 9 Car. & P. 643. 
bound, in other words, only to see that - Emmett v. Norton, 8 Car. & P. 506. 

94 



CHAP. III.] wife's debts AND CONTRACTS. § 63 

such circumstances, it must be taken prima facie that these 
goods were supplied by his authorit}", and he must show that 
he is not responsible.^ 

The wife's contract for necessaries will bind the husband 
to a still greater extent if the evidence warrant the inference 
that a more extensive authority has in fact been given.^ Thus 
the presumption which cohabitation furnishes is strengthened 
by proof that the wife has been permitted by the husband to 
purchase other articles of the same sort for the use of the 
household.^ But it must be ordinarily things for what may 
be termed the domestic department, to wliich the wife's 
authority to bind her husband is restricted.^ 

But we must observe that the question is, after all, one of 
evidence ; it turns upon the question of authority from the 
husband ; and this presumption in the wife's favor may be 
rebutted by contrary testimony on the husband's behalf.^ 
Lord Holt says : " His assent shall be presumed to all neces- 
sary contracts, upon the account of cohabiting, unless the con- 
trary appear."" ^ Not only is the husband permitted to show 
that articles in controversy are not such as can be considered 
necessaries, but he may show that he supplied his wife himself 
or by other agents, or that he gave her ready money to make 
the purchase.^ This is on the principle that the husband has 
the right to decide from whom and from what place the 

1 Clifford V. Laton, 3 Car. & P. 15, 187. The position assumed by Mr. 
per Lord Tenterden. But see post, Story, in liis work on Contracts, that, 
p. 97 ; Debenham v. Mellon, L. R. 5 Q. as to tlie wife's necessaries, " tlie law 
B. D. 394. raises an uncontrollable presumption of 

2 2 Bright Hus. & Wife, 9 ; cases assent on the part of the husband," is 
cited in note to Filmer i'. Lynn, 4 Nev. therefore incorrect. Story Contr. 2d 
& Man. -559 ; M'George v. Egan, 7 Scott ed. § 97. " Wliat the law docs infer is. 
Cases, 112. that the wife has autliority to contract 

3 1 Sid. 128 ; Jewsbury v. Newbold, for things that are really necessary and 
40 E. L. & Eq. 518. suitable to the style in wliich the hus- 

* Phillipson v. Hayter, L. R. 6 C. P. band chooses to live, in so far as the 
38. articles fail fairly within the domestic 

* Lane v. Ironmonger, 13 M. & W. department, which is ordinarily con- 
368. fided to the management of the wife." 

6 Etherington v. Parrott, 1 Salk. Willes, J., in Phillipson v. Hayter, L. R. 

118. See also, to the same effect, Mc- 6 C. P. 38. And see Bovill, C. J., ib., 

Cutchen v. McGahay, 11 Johns. 281 ; to the same effect. 
Montague v. Benedict, 3 B. & C. 631 ; -1 Sid. 109 ; Etherington v. Par- 

and note by Am editor to Bing. Inf. rott, 2 Ld. Raym. lOOG. 

95 



§ 63 THE DOMESTIC RELATIONS. [PAET U. 

necessaries shall come, and that, so long as he has provided 
necessaries in some way, his marital obligation is discharged, 
whatever may be the method he chooses to adopt. Accord- 
ingly in the class of cases which we are now considering, 
namely, where the spouses dwell together, so long as the 
husband is willing to provide necessaries at his own home, 
he is not liable to provide them elsewhere.^ In general, 
while the spouses live together, a husband who supplies his 
wife with necessaries suitable to her position and his own 
is not liable to others for debts contracted by her on such 
an account without his previous authority or subsequent 
sanction.^ 

As a rule, a husband who furnishes his wife and family 
with necessaries, in any reasonable manner, has the right to 
prohibit particular persons from trusting or dealing with her 
on his account. Notice to this effect, properly given, will 
be effectual as against any presumption which cohabitation 
raises. 3 And notice given to a tradesman's servant has been 
held sufficient notice to the master. But notice given in the 
newspapers not to trust a wife is held to be of no effect 
against such as have not had actual notice.* Nor is a suc- 
cessful defence against one bill sufficient notice of prohibition 
against subsequent bills.^ In order to bind the husband for 
goods furnished after notice to cease furnishing, the seller 
must show not only that the articles he furnishes are necessa- 
ries, but that the husband failed to supply them properly.^ 

Generally, in such cases, it has been said the burden of 
proof is upon the husband.'^ Such a statement, however, 
must be taken with caution. Cohabitation furnishes, as we 
have seen, a presumption of authority ; but the latest English 
decisions go very far toward annihilating that presumption 
by insisting that the question of the wife's express or implied 
authority is purely one of fact according to the circumstances 
of each case, where the spouses live together. And the 

1 Morgan v. Hughes, 20 Tex. Ul ; * Walker v. Laighton, 11 Fost. 
Jolly V. Eees, 15 C. B. n. s. 628. (X. H.) 111. 

2 Seaton v. Benedict, 5 Bing. 28. 5 Qgden v. Prentice, 3-3 Barb. 160. 

3 McCutchen v. McGahay, 11 Johns. ^ B^rr c. Armstrong, 5G Mo. 577. 
281 ; Keller v. Phillips, 39 N. Y. 3-31. ^ Tebbets v. Hapgood, U N. H 420. 

96 



CHAP. III.] wife's debts AND CONTRACTS. § 64 

English court of appeals for such cases ^ has lately confirmed 
a lower tribunal, ^ as though to dispense very considerably 
with the necessity of notice to tradesmen on the part of a 
husband Avho means to supply his wife properly, and at the 
same time prevent her from pledging his credit. The point 
decided, however, affects only tradesmen and others who 
have had no previous dealings with the wife, to which the 
husband's assent was given. ^ 

§ 64. Wife's Necessaries, where Spouses live together ; Same 
Subject continued. — Another point, as we have already sug- 
gested, is available to the person who has furnished necessa- 
ries on the general principles of agenc}'" ; namely, that a 
husband's subsequent ratification is as good as a previous 
authority. So, then, if it can be shown that the husband 
knew his wife had ordered certain necessaries, and yet failed 
to rescind the purchase ; or if there be proof that he knew 
she wore the articles and yet expressed no disapprobation ; 
the law presumes approval of her contract and binds him.* 
To this principle, perhaps, may be referred the rule which Mr. 
Roper further states (without, however, citing any authori- 
ties), that the husband is liable whenever the goods pur- 
chased by his wife come to her or his use with his knowledge 
and permission, or when he allows her to retain and enjoy 
them ; in other words, that a legal liability becomes fixed 
from the fact that the husband and his household take the 
benefit of the purchase.^ But the mere fact that a husband 
sees his wife wearing articles purchased without authority 

1 Debenham r. Mellon, L. R. 5 Q. B. Moo. & P. 74; Parke, B., in Lane v. 
D. 394. Doubt is thrown by this deci- Ironmonger, 13 M. & W. 368 ; Day 
sion upon Johnston v. Sumner, 3 H. & v. Burnham, 36 Vt. 37 ; Woodward v. 
N. 261. Barnes, 43 Vt. 330; Ogden v. Prentice, 

2 Jolly V. Rees, 15 C. B. n. s. 628. 33 Barb. 160. 

3 Debenham v. Mellon, L. R. 5 Q. B. ^2 Rop. Hus. & Wife, 112 ; 2 Bright 
D. 394. The opinion of Bramwell, L. J., Hus. & Wife, 9. Mr. Macqueen (Hus. 
in this case is worthy of careful pern- & Wife, note to p. 132) points out this 
sal. The same principle is confirmed statement of Mr. Roper with a doubt 
in this country by Woodward v. Barnes, as to the authority, although he admits 
43 Vt. 330. But of. Cothran r. Lee, the justice of such a rule, on the civil- 
24 Ala. 380; Schoul. Hus. & Wife, law maxim that " no one should enrich 
§ 107. himself at another's loss." 

* Seaton v. Benedict, 5 Bing. 28; 2 

7 97 



§ 64 THE DOMESTIC RELATIONS. [PART II. 

will not charge him ; the question is one of approval or dis- 
approval, assent or dissent, and the presumption against him 
ma}' be rebutted. ^ 

The husband's dissent to his wife's purchase of necessaries 
should be expressed in an effectual and suitable manner. 
Mere objection on his part is insufficient. Thus a bill for 
medical attendmce must be paid by him, even though he 
objected to the visits, as long as he was present, and gave no 
notice to the physician that the latter must look elsewhere for 
payment.^ And private arrangements between husband and 
wife as to the method of payment cannot affect the rights of 
third parties who were entitled to notice thereof and failed 
to receive it.^ If he means, when sued in assumpsit for 
necessaries, to defend the action as to part only, it would 
appear that his proper plea will be that he is not liable be- 
yond a certain amount, and he should pay that amount into 
court.'^ But if he means to dispute the charge altogether, 
common honesty dictates that the articles unwarrantably pur- 
chased should be restored without delay .^ He may introduce 
evidence at the trial to show that the commodities in question 
were not necessaries, inasmuch as the wife had incurred other 
similar debts with other parties.^ In a word, the question is 
(in the absence of such evidence of necessity as may show an 
agency in law) whether there was an agency and authority 
in fact.' 

The presumption of an agency on her husband's behalf 
may be overcome by the fact of a purchase by the wife upon 
her own or some third person's credit, wherever she is really 
trusted as principal herself, or as the agent of some one else 
than her spouse ; or where the third person ordered them in 
person.^ In all cases the husband will be discharged from 

1 Atkins V. Curwood, 7 Car. & P. * Emmet v. Norton, 8 Car. & P. 506. 
756. 5 Macq. Hus. & Wife, 136 ; Oilman 

2 Cothran v. Lee, 24 Ala. .380. v. Andrus, 28 Vt. 24L See Tuttle v. 
8 lb; Johnston v. Sumner, 3 Hurl. Holland, 43 Vt. 542. 

& Nor. 261. We have seen, supra, '^ Renaux v. Teakle, 20 E. L. & Eq. 

§ 63, that the latest English cases con- 345. 

siderably reduce the tradesman's right '^ Read v. Teakle, 24 E. L. & Eq. 

of notice as formerly understood. Deb- 332. 

enham v. Mellon, L. R. 5 Q. B. D. 894. 8 Though as to the right of her 

98 



CHAP. III.] wife's debts AND CONTRACTS. § 65 

liability where it appears that the goods were not supplied 
on his credit, but that the party furnishing them trusted the 
wife individually.^ She might have separate property, inde- 
pendently of her husband, to which the tradesman looked for 
payment, or a special allowance of sufficient amount might 
have been made her by her husband.^ Thus where the hus- 
band during a temporary absence made an allowance to his 
wife, he was held not to be liable for necessaries supplied to 
her, the tradesman having trusted to payment from her al- 
lowance.^ So if credit be given to a third party, the husband 
is not liable.^ And of course, if the tradesman has agreed 
not to charge him, there is no liability incurred by the hus- 
band.^ Though the wife be without property, the rule is the 
same ; and it would appear that the husband may give per- 
mission to trust his wife on her separate credit without incur- 
ring liability.^ 

§ 65. Wife's Necessaries where Spouses live together ; Sub- 
ject continued. — The usual analogies of agency may be tran- 
scended, notwithstanding the spouses live together, where 
the one is truly delinquent, and the other deprived of the 
support owing her. Wherever the husband neglects to 
supply his wife with necessaries, or the means of procuring 
them, she may obtain what is strictly needful for her support, 
although it be against his wishes, on the pledge of his credit. 

father or any other third person to * Harvey v. Norton, 4 Jur. 42. 
stand in place of a tradesnaan, under ^ Dixon v. Hurrell, 8 Car. & P. 

proper circumstances of necessity, see 717. 
supra, § 61, n. 6 Taylor v. Shelton, 30 Conn. 122. 

1 3 Camp. 22 ; 5 Taunt. 356 ; Pear- For circumstances thus repelling the 
son V. Darrington, 32 Ala. 227 ; Stam- presumption of agency, see Schoul. 
mers v. Macomb, 2 Wend. 454 ; Moses Hus. & Wife, § 109 and cases cited ; 
V. Forgartie, 2 Hill (S. C), 335 ; Carter Mitchell v. Treanor, 11 Ga. 824 ; 2 Tyr. 
V. Howard, 39 Vt. 106; Bugbee v. 523. The husband is not relieved by 
Blood, 48 Vt. 497. the single circumstance that the goods 

2 Levett I'. Penrice, 24 Miss. 416 ; were charged on the shop books to the 
Simmons v. McElwain, 26 Barb. 420; wife, since i^nma/ac/e the actual credit 
McMahon v. Lewis, 4 Bush, 138 ; Weis- is always supposed to be given to the 
ker V. Lowenthal, 31 Md. 413. husband. Jewsbury v. Newbold, 40 



3 Holt V. Brien, 4 B. & Aid. 252 
Montague v. Benedict, 3 B. & C. 631 
Harshaw v. Merryman, 18 Miss. 106 
Renaux v. Teakle, 20 E. L. & Eq. 345. 



E. L. & Eq. 518 ; Godfrey v. Brooks, 
5 Harring. 396 ; Furlong v. Hyson, 35 
Me. 332. 

99 



§ 66 THE DOMESTIC RELATIONS. [PAET n. 

And the person furnishing the articles may sue the husband 
notwithstanding he has been expressly forbidden to trust 
her.^ But here the law raises a presumption of agency only 
for the purpose of enforcing a marital obligation. Such an 
agency is perhaps an agency of necessit3%2 And the trades- 
man or other party furnishing supplies in this case is bound 
to show affirmatively and clearly that the husband did not 
provide necessaries for his wife, suitable to her condition in 
life .3 

§ (56. "Wife's Necessaries -wrhere Spouses live apart. — In 
the second class of cases which we are to consider, the hus- 
band's liability for his wife's necessaries arises where they 
are living apart. The rule is that where the husband aban- 
dons his wife, turns her away without reasonable cause, or 
compels her by ill usage to leave him, without adequate pro- 
vision, he is liable for her necessaries, and sends credit with 
her to that exterit.^ The wife's faithfulness, on the one hand, 
to her marriage obligations ; on the other, the husband's dis- 
regard of his own : these afford the reason of the above rule 
and suggest its proper limitation. The wife in such cases has 
an authority ; but here what some have certainly called an 
authority of necessity.^ Or we may say, rather, that the law 
by a fiction, infers an agency without asking evidence which 
should show authority in fact, and requires the husband, 
under these circumstances, to maintain his wife elsewhere. 

This rule suggests, then, three cases where the wife may 
pledge her husband's credit when they are living apart : the 
first, where he abandons her ; the second, where he turns her 
out of doors without reasonable cause ; the third, where his 

1 Keller v. Phillips, 39 N. Y. 351 ; pauper, see Monson v. Williams, 6 
Cromwell v. Benjamin, 41 Barb. 558; Gray, 416 ; Eumnej' v. Keyes, 7 N. H. 
Woodward v. Barnes, 43 Vt. 330. 571 ; Norton v. Rhodes, 18 Barb. 100 ; 

2 Pollock, C. B., in Johnston v. Sum- Commissioners v. Hildebrand, 1 Carter, 
ner, 3 H. & N. 261, likens the agency 555. 

under such circumstances to that which * 2 Kent Com. 146, 147; 2 Bright 

the captain of a ship sometimes ex- Hus. & Wife, 10-12 ; Snover v. Blair, 1 

ercises. Dutch. 94 ; Mayhew v. Thayer, 8 Gray, 

3 Keller v. Phillips, 39 N. Y. 351 ; 172. 

Cromwell v. Benjamin, 41 Barb. 558 ; ^ gee Pollock, C. B., in Johnston v. 
Woodward i'. Barnes, 4-3 Vt. 3-30. As Sumner, 3 Hurl. & Nor. 261. 
to suing for support of the wife as a 

100 



CHAP, in.] wife's debts and contracts. § 66 

misconduct compels ber to leave him. In the first two cases 
his own acts impose the necessity, and her conduct is in- 
voluntary. But in the third her conduct might be considered 
voluntary, though induced by his misconduct ; and the rule 
here becomes perplexing. The doctrine of Horwood v. Heffer, 
an old case, is that the wife is not justified in leaving her 
husband unless she has been driven from the house by actual 
violence or apprehension for her personal safety ; and in this 
case the husband was held not to be liable since she had 
quitted his house because he placed a profligate woman at 
the head of the table. ^ This doctrine has been strongly con- 
demned in later times, and the modern cases justly regard 
such studied insults as capable of legal redress. If, therefore, 
the husband, by his indecent conduct, renders his house 
unfit for a modest woman to share it, the rule now is that 
she may leave him, and pledge his credit elsewhere for her 
necessaries.^ 

Where the wife is justified on any of the above grounds in 
living apart from her husband, he is not discharged from lia- 
bility by showing that her contract was in fact made without 
his authority and contrary to his wishes. Nor will his gen- 
eral advertisement or particular notice to individuals not to 
give credit to his wife affect the case." The legal presump- 
tion must prevail for the wife's protection. 

Nor, in such cases, can the husband terminate his liability 
for necessaries supplied his wife during the separation, by a 
simple request on his part that she shall return.^ And it is 
clear that if he only offers to take her back upon conditions 
which are unreasonable and improper, his liability continues.^ 
It is the husband's duty, by some positive act, to determine 
his liability ; though if the wife voluntarily returns, his lia- 
bility for necessaries furnished abroad is discontinued. But 

1 3 Taunt. 421. 15 Gray, 78 ; Bazeley v. Forder, L. R. 

2 Per Lord Ellenborough, Liddlow 3 Q. B. 559. 

V. Wilmot, 2 Stark. 77 ; 1 Selw. N. P. 3 4 Esp. 41 ; 1 Selw. N. P. 298, 11th 

298, 11th ed. ; per Best, C. J., Houlis- ed. ; 2 Stra. 1214. See Black v. Bryan, 

ton V. Smyth, 3 Bing. 127 ; 10 Moo. 18 Tex. 453. 

482 ; 2 Car. & P. 22 ; Descelles v. Kad- * Emery v. Emery, 1 You. & Jer. 

mus, 8 Clarke, 51 ; Hultz v. Gibbs, 66 501. 

Penn. St. 360 ; Reynolds v. Sweetser, 5 Reed v. Moore, 5 Car. & P. 200. 

101 



§ 66 THE DOMESTIC RELATIONS. [PAET II. 

in default of any amicable arrangement, he must institute 
proceedings in the courts with divorce jurisdiction. And until 
some such unequivocal act is done, a person making a proper 
claim in a court of law for necessaries supplied to the wife 
may be entitled to recover against him.^ Where the wife had 
good reasons for leaving, the husband is not discharged, by 
the fact of her subsequent return, from liability for necessaries 
furnished during her justifiable absence.^ 

But the wife should have weighty and sufficient cause for 
leaving her husband, in order to be permitted, on her part, to 
pledge his credit abroad. In general, the same facts suffice 
as justify divorce from bed and board.^ But where she leaves 
her husband without sufficient cause and against his will, he 
is not Uable for her maintenance elsewhere, and she cannot 
bind him ; especially if the person furnishing goods knows 
that cohabitation has ceased, and makes no further inquiries.^ 
Supposing the wife leaves voluntarily and without sufficient 
cause, against her husband's wishes, and she afterwards re- 
turns to her husband, is he bound to receive her ; and if he 
refuse to receive her, can she make him liable for debts con- 
tracted thenceforth for necessaries ? The current of author- 
ities is in favor of such a position, provided she conducted 
herself properly in her absence.^ Some, however, have sug- 
gested doubts as to this doctrine ; for, they say, since the 
wife by her own voluntary act discharged the husband from 
his obligation to maintain her, by unnecessarily quitting his 
house without his consent, it is but reasonable to say that his 
liability to support her afterwards should not be revived by 



1 Reed r. Moore, supra. See Atkyns Etherington v. Parrott, 2 Ld. Kaym. 
V. Pearce, 2 C. B. n. s. 763. 1006 : 1 Sid. 130; Bailey v. Calcott, 4 

2 Reynolds v. Sweetser, 15 Gray, Jur. 699 ; Collins v. Mitchell, 5 Harring. 
78. 369; Bevier v. Galloway, 71 111. 517: 

3 Brown v. Patton, 3 Humph. 135 ; Harttman v. Tegart, 12 Kan. 177 ; Oin- 
Hancock v. Merrick, 10 Cush. 41 ; Rea son v. Heritage, 45 Ind. 73 ; Thome v. 
V. Durkee, 25 111. 503; Schindel r. Kathan, 51 Vt. 520. 

Schindel, 12 Md. 294 ; Stevens v. Story, * Manby v. Scott, 1 Sid. 129 ; 1 Mod. 

43 Vt. 327 ; Barker v. Dayton, 28 131 ; Hindley v. Westmeath, 6 B. & C. 

Wis. 367; Thorpe y. Shapleigh, 67 Me. 200; Howard v. Whetstone, 10 Oliio, 

235. 365 ; McCutchen v. McGahay, 11 Johns. 

* Brown v. Midgett, 40 Vt. 68; 281. 



10- 



CHAP, III.] wife's debts AND CONTRACTS. § 66 

implication without his express concurrence in consenting to 
his wife's return to his protection, or until cohabitation was 
restored by mutual agreement, or by the sentence of a court 
with appropriate matrimonial jurisdiction.^ This is fair rea- 
soning on general grounds, and applies a mutual doctrine to 
husband and wife ; but the courts appear to have thought 
otlierwise. 

If, however, as the reader may have inferred, the wife elopes 
and then commits adultery, or if her adultery causes separa- 
tion, the husband becomes relieved from her support. Her 
crime ought to put an end to her authority to bind the 
injured spouse, and it does.^ In such case his refusal to take 
her back again will not revive his obligation to maintain her. 
But as forgiveness always interposes a bar to legal remedies 
on behalf of the injured one, he becomes once more liable for 
her necessaries, where he voluntarily receives her again and 
forgives her.^ There are cases where the marital rights and 
duties become more confused. Supposing the wife be turned 
out of doors, or, what amounts to the same thing, be forced 
by her husband's misconduct to leave ; and she afterwards, 
being beyond that shelter which every wife needs, commit 
adultery ; is he then relieved from supporting her ? In 
Govier v. Hancock it was held that he was, even though his 
own adultery caused her departure.^ This was a very harsh 
decision. The court, however, admitted that necessaries fur- 
nished before her own adultery could be recovered from her 
husband. And in a subsequent case it was held that adulter- 
ous conduct of the wife, with the connivance of the husband, 
or at least without such a separation of the married pair as to 
make her misconduct notorious, would not, per se, operate as 
a defence and protect the husband from liability.^ And more 
to the point is a case decided only a short time ago, where 

1 See 2 Bright Hus. & Wife, 13. ^ Harris r. Morris, 4 Esp. 41 ; Robi- 
But see 2 Bish. Mar. & Div. 5tli ed. son v. Gosnold, 6 Mod. 171 ; Holt v. 
§ 33. See Sclioul. Hus. & Wife, § 523, Brien, 4 B. & Aid. 252 ; Quincy v. 
as to divorce remedies. Quincy, 10 N. H. 272. 

2 Morris v. Martin, 1 Stra. 647 ; * 6 T. R. 603. 

Manwaring v. Sands, 2 Stra. 707 ; Har- ^ Norton v. Fazan, 1 B. & P. 225. 
die V. Grant, 8 Car. & P. 512 ; Schoul. 
Hus. & Wife, § 113. 

103 



§ 67 THE DOMESTIC RELATIONS. [PAET II. 

the husband was held liable, even though the wife had been 
found guilty of adultery in the divorce court ; since it ap- 
peared that he also had been found guilty of adultery, so that 
no divorce was decreed.^ But one who harbors another 
man's wife for illicit purposes is a wrong-doer, and cannot 
recover for her maintenance, even though she had fled from 
her own husband's cruelty .^ 

§ 67. Wife's Necessaries where Spouses live apart ; Subject 
continued. — There is a dictum of Lord Holt to be found in an 
old case (or rather in the reporter's note), which sometimes 
finds its way to the text-books ; namely, that, if a husband 
receives back his wife, he becomes liable for her debts con- 
tracted during the whole period of her unauthorized absence.^ 
This seems very unreasonable, where the fault was on her 
part. The true doctrine is, doubtless, that after such recon- 
ciliation the husband is liable upon her subsequent contracts 
only. And this is the rule expressly asserted in some Amer- 
ican cases.^ 

The destitute wife of a lunatic living separate from her in 
an asylum may yet pledge his credit for necessaries; ^ though 
not, of course, for what she does not need, as where, for 
example she receives sufficient income out of his estate.^ 

^ Needham i;. Bremner, L. R. 1 C. P. persons knowing her condition, who 

583. chose to trust her, could not complain 

2 Alray V. Wilcox, 110 Mass. 443. if they found themselves unable to sue 

^ Robison v. Gosnold, 6 Mod. 171. her. But these remarks are very cau- 

See Bing. Inf. 190, «., Am. ed. tiously put; and it seems reasonable 

* Williams v. Prince, 3 Strobh. 490; to suppose, as Justice BuUer expresses 

Reese y. Chilton, 26 Mo. 508; Oinson himself in tlie case upon whicli Lord 

f. Heritage, 45 Ind. 73. See also Chitty Kenyon commented, that the wife 

Contr. 168; Williams v. McGahay, 12 would become liable therefor; cer- 

Johns. 203. tainly if she represented herself as a 

How far the wife can contract lia- single woman. Cox v. Kitchin, 1 B. & 

bility for necessaries in her own per- P. 339; Childress v. Mann, 83 Ala. 

son, when the husband is discharged by 206 ; McHenry v. Davies, L. R. 10 Eq. 

her delinquency, was considered in the 88. See ch. 12, post, as to wife's neces- 

case of Marshall v. Rutton, 8 T. R. saries under modern legislation. 
547. Lord Kenyon observed that it was ^ Reed v. Legard, 4 E. L. & Eq. 523; 

not a necessary consequence of the de- Shaw v. Thompson, 16 Pick. 198. 
termination of the husband's responsi- ^ Chappell v. Nunn, 41 L. T. n. s. 

bility that the wife should be at liberty 287 ; Richardson v. Du Bois, L. R. 5 

to act as a feme sole ; but that the con- Q. B. 51. 
trary was the truth ; and that any 

104 



CHAP. III.] wife's debts AND CONTRACTS. § 68 

She cannot pledge, it might seem, where he is banished or in 
prison, provided the law recognize her as feme sole ; ^ but as 
an agent of necessity, and to compel his marital obligation, 
she ought to be permitted to do so if she desires, and not 
unfrequently does, where he is in jail or prison.^ If the wife 
be in an insane asylum, the husband is not the less liable for 
her support.3 But not where she is in prison.^ And it seems 
that under circumstances of misconduct on the wife's part 
the husband may compel her to assent, after her release from 
confinement, to live separate on an allowance, without being 
chargeable for her support as one who has turned his wife 
out of doors.^ 

§ 68. Wife's Necessaries where Spouses live apart; Mutual 
Separation. — But besides involuntary separation, there is the 
case of voluntary separation to be considered. This last, now 
so frequent, the law tolerates, but does not favor. The rule 
is, that where a husband and wife parted by mutual consent, 
and a suitable allowance is furnished the wife, the husband 
is not bound to pay any bills which she may have contracted 
as his agent.^ It is enough that the separation be a matter 
of common reputation where he resides. But to this allow- 
ance two things are requisite : first, that it shall be really 
sufficient for the wife ; second, that it shall be regularly paid. 
If either requirement be wanting, — a fact which the seller 
must ascertain at his peril, — the wife is not confined to her 
remedy on the deed of separation, if any, but may pledge her 
husband's credit. As to the first requirement, the question 
is not whether the wife consented to accept a certain allow- 
ance as sufiicient for her support, but whether it be actually 

1 Keeve Dom. Rel. 86. 5 Wray v. Wray, 33 Ala. 187 ; Brook- 

2 See Aliern v. Easterby, 42 Conn, field v. Allen, 585. 

546. The husband is liable for his 6 8 Car. & P. 717 ; 1 Salk. 116; 1 Ld. 

wife's necessaries, even though she has Raym. 444; Hindley r. Westmeath, 6 

been declared a, feme sole trader. Mark- B. & C. 200 ; Mizen v. Pick, 3 M. & W. 

ley V. Wartman, 9 Phila. 236. 481 ; Schoul. Hus. & Wife, § 117 ; Cal- 

8 Wray v. Wray, 33 Ala. 187. And kins v. Long, 22 Barb. 97 ; Kemp v. 

see Alna v. Plummer, 4 Greenl. 258; Downham, 5 Barring. 417; Caney v. 

Wray v. Cox, 24 Ala. 337 ; Brookfield Patton, 2 Ashra. 140 ; Baker v. Barney, 

V. Allen, 6 Allen, 585. 8 Johns. 72. 

* 2 Stra. 1122 ; Bates v. Enright, 42 
Me. 105. 

105 



§ 69 THE DOMESTIC RELATIONS. [PART 11. 

sufficient in the opinion of the jury.^ As to the second, the 
mere covenant or contract of the husband to pay separate 
maintenance will not discharge him from liability for neces- 
saries ; for, as was observed in a leading case, " the common 
law does not relieve any man from an obligation on the mere 
ground of an agreement to do something else in the place, 
unless that agreement be performed." ^ 

If wife and husband part by mutual consent, and there is 
no allowance to the wife, it may be presumed that the wife 
has the right to pledge her husband's credit, for he has not 
relieved himself of his marital obligation.^ It is immaterial 
whether the wife's allowance be secured by deed or not, since 
it is the payment which discharges him.^ 

But on account of the increasing favor with which separa- 
tion deeds are held, allowance of maintenance by a formal 
separation deed appears under the latest English decisions to 
be treated with so great respect as to be deemed conclusive 
of the extent and method of a husband's liability for his wife's 
support during their separation.^ 

§ 69. Wife's Necessaries where Spouses live apart ; Pre- 
sumptions ; Good Faith. — It has generally been understood 
that whenever husband and wife separate, under circum- 
stances showing misconduct on the part of either, the pre- 
sumption of agency changes sides. The fact of their living 
apart is of itself a caution to all who hold dealings with a 
married pair. While they cohabit it is usually for the hus- 
band to show a want of authority ; when they cease to cohabit 
the seller must prove authority ; that is to say, he must prove 

1 Thompson v. Harvey, 4 Burr. 70 ; Emery v. Neighbour, 2 Halst. 142 ; 
2177 ; Hodgkinson v. Fletclier, 4 Cair.p. HohJen v. Cope. 2 Car. & K. 437. But 
N. P. 70 ; Pearson v. Darrington, 32 see Ewers v. Hutton, -3 Esp. 255. 

Ala. 227 ; Liddlow v. Wilmot, 2 Star- ^ Eastland v. Burchell, L. R. 3 Q. 

kie, 77 ; Emmet v. Norton, 8 Car. & P. B. D. 432. Qu. whether the wife has 

506. any remedy afforded her under such cir- 

2 Nurse v. Craig, 5 B. & P. 148, per cumstances for procuring the mainten- 
Heath, J. ; Hindley v. Westmeath, 6 B. ance which it continues the husband's 
& C. 200 ; Lockwood v. Thomas, 12 duty to render. Lush, J., in this case 
Johns. 248; Kimball u.Keyes, 11 Wend, seems to rest the wife's general right 
33. to pledge her husband's credit too ex- 

3 Ross V. Ross, 69 111. 569. clusively upon the doctrine of agency. 
* Hodgkinson v. Fletcher, 4 Camp. See § 70, post. 

106 



CHAP. lU.] wife's debts AND CONTRACTS. § 70 

that the wife was in need of the goods, that the husband 
failed to supply her, and that the wife was not at fault. 
Prima facie^ therefore, a woman living apart from her hus- 
band, upon either voluntary or involuntary separation,^ has 
no authority to bind him.^ This contrast of presumptions is 
subject to the new English doctrine lately commented upon, 
which seems to put all new tradesmen on their guard in their 
first dealings with a married woman.^ Where the husband is 
merely absent from home for temporary purposes, the wife's 
presumed authority continues.* And where the fact of sepa- 
ration is not commonly known, or where, by occasional visits, 
the husband keeps up the appearance of cohabitation with his 
wife, he has generally been considered jor^'ma facie liable as 
before ; ^ though notice of an allowance is notice of his dis- 
sent to the wife's contracts.^ He may agree with the wife's 
tradesman, while living apart from her, that the goods sup- 
plied shall not be charged to him ; and to such special agree- 
ment the tradesman will be heldj 

Courts will always regard the rule of good faith in matters 
relative to the wife's necessaries. Thus if the husband and 
wife be living apart without the husband's fault, and he 
wishes to terminate his liability by requesting her to return 
home, his conduct must show sincerity ; though, if his inten- 
tions are bona fide, and he makes suitable provision at his 
own home, the wife forfeits all claim to further support by 
refusing to return.^ 

§ 70. Wife's Necessaries ; Summary of Doctrine. — The com- 
mon-law doctrine, as we have seen, makes the ground of the 
husband's liability for his wife's necessaries essentially that 



1 Johnston r. Sumner, 3 Hurl. &, ^ Supra, § 63 ; Debenham v. Mellon, 

Nor. 261, per Pollock, C. B., and au- L. R. 5 Q. B. D. 394. 
thorities there commented upon. * Frost v. Willis, 13 Vt. 202. 

2 Etherington v. Parrott, 2 Ld. 5 Rawlins v. Vandyke; 3 Esp. 250, 

Eaym. 1006 ; Montague v. Benedict, 3 per Lord Eldon. 

B. & C. 631 ; Walker v. Simpson, 7 W. 6 Hinton v. Hudson, Freem. 248 ; 

& S. 83 ; Mitchell v. Treanor, 11 Ga. Kimball v. Keyes, 11 Wend. 33. 
324 ; Rea v. Durkee, 25 111. 503 ; Schoul. ^ Dixon v. Hurrell, 8 Car. & P. 717. 
Hus. & Wife, § 119 ; Stevens v. Story, ^ Walker v. Laighton, 11 Foster, 

43 Vt. 327; Sturtevant v. Starin, 19 111. And see Cartvvright v. Bate, 1 

Wis. 268. Allen, 514. 

107 



§ 70 THE DOMESTIC RELATIONS. [PAKT H. 

of agency. This agency is stated as an agency of necessity 
where a deserving wife stands in want of supplies because 
of her husband's misconduct. But in truth such necessity 
transcends all the analogies of an authorized representation, 
and inasmuch as the wife has no propei-ty and is legally 
dependent on her husband, a right to supply her wants upon 
his credit is inferred from the nature of her situation. When 
both spouses live together, the wife may pledge her hus- 
band's credit for necessaries, unless he supplies them other- 
wise, and so performs his duty after his own method ; if they 
separate, his liability continues commensurate with his obli- 
gation, so that she can only pledge his credit when the fault 
was not her own, but, being justified in her conduct, the 
conjugal right to necessaries is perfect, and consequently 
enforceable in this manner, unless he performs his duty after 
his own method. The discrepancy of the cases relates chiefly 
to presumptions in favor of the person who supplies the 
necessaries ; and here, as we have seen, the latest decisions 
leave it in doubt how strong a presumption cohabitation as 
husband and wife furnishes by itself. Formerly it was 
thought that private arrangements between husband and 
wife, where they lived together, could not be set up against 
the seller who had no notice thereof ; but latterly the Eng- 
lish inclination has been, as we have seen,i to limit the 
implied agency of the wife, during cohabitation, to those whose 
dealings have already been recognized by the husband, and 
who therefore ought to have notice of revocation ; which rule 
of course narrows down the presumption. Whatever pre- 
sumption of authority may be inferred from cohabitation, 
separation raises the counter-presumption that the wife has 
no authority to pledge her husband's credit.' Upon the 
whole, to reconcile the earlier and later decisions, the wife's 
right of procuring necessaries on her husband's credit may be 
deduced from these two combined considerations : (1) That 
where the husband proves remiss in furnishing needful sup- 
port, the wife has the right to compel such support by pledg- 
ing his credit, whether they cohabit or dwell apart, so long 

1 Supra, § 63. 

108 



CHAP. III.] wife's debts AND CONTRACTS. § 71 

as misconduct on her part has not absolved him from the 
conjugal duty, — this rule of compulsion taking largely the 
place, in modern times, of the old remedies formerly pursued 
in the ecclesiastical courts ; (2) That any wife may be the 
agent of her husband and bind him to the extent of her 
authority, like otiier representatives. In short, the rule of 
agency as to wife's necessaries is carried far enough in actual 
practice to make that agency a fiction for the sake of a wife's 
self-protection against her unfaithful spouse.^ 

We may add that the husband's express contract with 
others, or his express promise or express sanction comes in 
aid of such legal inference concerning his liability for supplies 
furnished his wife, as may be drawn from any of the matri- 
monial situations which we have considered.^ 

§ 71. "Wife's Necessaries; Miscellaneous Points. — Marriage 
de faeto^ or reputed marriage, is alwaj^s sufficient to charge 
the husband with his wife's necessaries. There seem to be 
three reasons why this should be so : one, that a tradesman 
cannot be expected to inquire into such matters ; another, that 
agency binds' any principal; the third, that it is just that a 
man who holds out a woman to society as his wife should 
maintain her as such. Hence an agency is to be inferred 
wherever there is cohabitation of parties as husband and 
wife ; though not, it would appear, where the cohabitation is 
irregular and calculated to raise a different impression, and 
strong proof of actual authority bestowed is not furnished.^ 

1 That agency is not the full meas- her rights against an unfaithful hus- 

ure of the wife's power to bind her band in self-protection. The English 

husband for what she needs is further courts included articles of peace against 

seen in the decisions upon tlie point of the husband under necessaries. Supra, 

a wife's legal expenses already noticed. § 61, n. But they stopped short at in- 

Supra, § 61, n. Here there is some dictment of the husband for assault, 

confusion in the decisions ; but a dispo- Supra, § 61, n. 

sition very clear is shown by the courts 2 g^e e. g. Daubney v. Hughes, 60 

to allow the wife in numerous instances N. Y. 187. Any notice intended to ter- 

to prosecute or defend in furtherance minate the continuance of an express 

of her marital rights, even tliough it be contract must, in order to be effectual, 

against the husband himself. Incon- be appropriate thereto. Ih. And see 

sistently enough, the fiction of agency Mickelberry v. Harvey, 58 Ind. 523. 
as to necessaries has been here em- ^ 2 Esp, 637. And see 1 Greenl. 

ployed ; but the true ground is rather Evid § 207 ; 1 Camp. 245 ; Jewsbury 

that the wife is permitted to maintain v. Nevvbold, 40 E. L. & Eq. 518; Munroe 

109 



§ 71 THE DOMESTIC EELATIONS. [PART II. 

An adult husband is bound on the contract of his minor 
wife for necessaries.^ And a minor husband is liable for 
necessaries furnished his wife, whether she be minor or adult.^ 
The ordinary rules of husband and wife, therefore, appl}^ so 
far as such necessaries are concerned. If old enouph to con- 
tract marriage, an infant is presumed old enough to pay for his 
wife's board and lodging as well as his own.^ But with re- 
gard to his wife's general contracts it would seem that infancy'-, 
which incapacitates him from making contracts in person, also 
disqualifies him from employing an attorney. 

As an agent duly authorized, the wife may doubtless 
pledge her husband's credit for the necessaries of the chil- 
dren, as well as her own. But upon the doctrine of pre- 
sumptions and an implied authority from him to do so, the 
common law is more reserved. "Family necessaries " is an 
expression of our later statutes which indicates a growing 
favor in that direction, and modern custom may, of course, 
extend the implied scope of an agency beyond earlier 
usage.* 

But as the obligation of a husband to support does not 
extend beyond his wife and own children, nor even to step- 
children, a wife cannot ordinarily make a binding contract to 
support her own parent, brother, sister, or near relatives, 
either at his expense or her own, since she is neither sui juris 
nor presumably his agent for that purpose.^ 

Policy has regarded parental claims for necessaries fur- 
nished to a wife with great distrust. Such claims may doubt- 
less accrue under an express contract.*^ But the law will not 
ordinarily imply a contract, as against a son-in-law, to pay his 
wife's board while staying at her father's house. Some of the 
latest cases, nevertheless, imply a promise on the husband's 
part to pay his wife's board, where she goes to her parent's 
house upon a mutual understanding that she may stay there 

V. De Chemant, 4 Camp. 215 ; Schoul. 3 /j. 

Hus & Wife, § 122. * gee legislative changes, post. And 

1 Nicholson v. Wilborn, 13 Ga. 467 see Cook v. Ligon, 54 Miss. 368 ; Pow- 

2 Cantine v. Phillips, 5 Harring. ers v. Russell, 26 Mich. 179. 
428. And see Bush v. Lindsey, 14 Ga. ^ oiney v. Howe, 89 III. 556. 

687. 6 Daubney v. Hughes, 60 N. Y. 187. 

110 

< 



CHAP. III.] wife's debts AND CONTKACTS. § 72 

indefinitely, the spouses having quarrelled.^ With the grow- 
ing laxity of the marriage union, the parent's intervention 
on a daughter's behalf against her husband, with the view of 
procuring her divorce, and boarding her at the husband's 
cost meantime, is, unhappily, becoming far more common 
than formerly, and more readily encouraged by the courts. 

The reader has perceived that the claim for a wife's neces- 
saries involves two elements : articles furnished must be of 
the suitable class, such as food, dress, or medical attendance ; 
and, furthermore, of that class the wife must be destitute of 
such supply as befits her condition and the means and station 
of her husband. Hence a blending of law and fact ; and 
hence, moreover, much confusion in laying down the rules, 
though a tradesman has not always to inquire strictly. 
Where one has supplied the wife with articles, some of which 
are necessaries and some are not, some of which were rightly 
furnished her and some of which were not, he can yet recover 
for the necessaries, or for what he rightly furnished.^ But on 
the other hand, one cannot furnish articles which were not 
necessaries and not suitable, and recover a fraction of their 
value on the plea that they might have answered the purpose 
of other articles which would have been necessaries.^ 

§ 72. Wife's General Agency for her Husband. — The wife 
may bind her husband for other contracts than those for ne- 
cessaries, where an agency in the premises, express or implied, 
can be shown. The natural incapacities of her sex super- 
added to those of the marriage state, the practical difficulties 
which persons dealing through such an agent must encounter, 
particularly where they find she had exceeded her authority, 
and yet cannot hold her liable in person, her own exposure 
to fraud, deceit, and coercion, — all these combine to render 
the wife an undesirable business representative ; and cases of 
this sort come rarely before the courts. But the wife may be 



i Burkett v. Trowbridge, 61 Me 251 ; 2 Eames v. Swectser, 101 Mass. 78 ; 

Daubney v. Hughes, 60 N. Y. 187 ; Roberts v. Kelley, 51 Vt. 97. 
Schoul. Hus & Wife, § 124. As to 3 Thorpe v. Shapleigb, 67 Me, 

wife's own claims, raising funds, &c., 235. 
see Schoul Hus. & Wife, § 125. 

Ill 



§ 72 THE DOMESTIC RELATIONS. [PART II. 

delegated an attorney, even under a sealed instrument.^ And 
on principle there is little reason to doubt her capacity to 
bind her husband in all general transactions where he has 
given an express authority. So, too, her agency may be in- 
ferred from his acts and conduct respecting her ; and the 
general rule applies that such agency is to be measured by 
the scope of the usual employment.^ It is by virtue of such 
an extended agency that we find a married woman enabled 
frequently to pledge her husband's credit beyond all ordinary 
rules as to a wife's necessaries. The usual cases in which a 
wife binds the husband on contracts not for necessaries ma}' 
be reduced to two classes : the one where the nature of his 
employment is such that the wife is expected to share in it; 
the other where he is absent from home, and some one must 
carry on the household and small business matters.^ 

Thus, it is held that where a husband permits his wife to 
carry on a certain business in his name, and to draw in his 
name checks and notes to be used in the course of the 
business, she cannot make him liable as surety for loans to 
third persons, or upon accommodation paper, merely because 
of such an agency.* And where her agency extends only to 
the performance of certain specific acts of a general trans- 
action, she cannot bind him by her acts and admissions re- 
specting other matters connected with the general transaction.^ 
The husband may, by suitable conduct, make his wife his 
agent for receiving settlement of claims due him while 
absent;^ or for employing legal assistance as incidental to 
managing his affairs.'^ The wife may be her husband's agent 
as to his real estate, not only for the purpose of collecting 
rents and making small repairs, but in the more important 
transactions. But as deeds and written instruments are here 

1 Goodwin v. Kelly, 42 Barb. 194. 3 See this doctrine discussed at 

2 Cox V. Hoffman, 4 Dev. & Batt. length, with citation of cases, in Schoul. 
180; Mackinley v. McGregor, 3 Whart Hus. & Wife, §§ 127-180. 

869 ; Camelin v. Palmer Co., 10 Allen, * Gulick v. Grover, 2 Vroom, 182 ; 

539; Ruddock v. Marsh, 38 E L. & Eq. 4 Vroom, 463. 
515 ; Pickering v. Pickering, 6 N. H. 5 Goodrich v. Tracy, 43 Vt. 314. 

124; Gray v. Otis, 11 Vt. 628; Miller e stall v. Meek, 70 Penn. St. 181. 

V. Delamater, 12 Wend. 433 ; Mickel- See Meader r. Page, 39 Vt. 306. 
berry v. Harvey, 58 Ind. 523. ^ Buford v. Speed, 11 Bush, 338. 

112 



CHAP. III.] wife's debts AND CONTRACTS. § 73 

commonly requisite, and formalities must be followed, little 
can be left to inference. Such authority presupposes usually 
a husband's long absence. Thus the management of a farm 
in a husband's absence, with the care of the stock, is not un- 
frequently entrusted to the wife.^ It is not to be presumed 
that a wife can revoke her husband's license on his premises, 
given to a third person,^ nor grant an irrevocable license 
thereon.3 The wife may represent her husband, not only in 
the general management of his own lands, so as to bind him, 
but, under certain circumstances, with reference to her real 
f^state in which he has the usual marital rights, or lands 
owned partly by her and partly by him.* 

Ratification by the husband is not essential where the scope 
of the wife's agenc}^ was sufficient without it ; ^ but it cures 
acts of doubtful authority. The wife's sale or gift of her 
husband's personal property, even without authority, or her 
purchase on his behalf, may be confirmed by his subsequent 
acts amounting to ratification ; and one mode of ratification is 
to accept knowingly the benefits of her transaction.^ Acts 
done by the wife in relation to her husband's property with- 
out authority should of course be promptly disavowed by 
him within a reasonable time, if he wishes to escape responsi- 
bility.'^ Nor can a husband stand by and see his wife use the 
proceeds of a sale of his property sold by her with, his knowl- 
edge, and afterwards reclaim the property.^ 

§ 73. Effect of Marriage of Debtor and Creditor, — A debt or 
obligation due a woman is extinguished, not suspended, at 
common law, by her marriage with the debtor or obligor, and 
she cannot recover the same against him or his estate after 
the relation is ended.^ So, too, where the woman is debtor 

1 Chunot V. Larson, 43 Wis. 530 ; 523 ; Pike v. Baker, 53 111. 163 ; Sliaw 

McAfee y. Robertson, 41 Tex. 355. v. Emery, 38 Me. 484; sjipm, § 64. 

- Kellogg V. Robinson, 32 Conn. 335. Even a trifling gift from the wife by 

3 Nelson v. Garey, 114 Mass. 418. way of charity has been npheld, though 

* Cheney v. Pierce, 38 Vt. 515; without the husband's permission. 

Dresel v. Jordan, 104 Mass. 407. Spencer v. Storrs, 38 Vt. 156 

5 See McAfee v. Robertson, 41 Tex. ^ Hill v. Sewald, 53 Penn. St. 271. 

355. 8 Delano v. Blanchard, 52 Vt. 578 ; 

e Dunnahoe r. Williams, 24 Ark. Huff r. Price, 50 Mo. 228. 

264; Mickelberry v. Harvey, 58 Ind. 9 Smiley v. Smiley, 18 Ohio St. 543. 

8 113 



§ 75 THE DOMESTIC RELATIONS. [PART U, 

and marries the creditor, the debt against her is discharged. 
These doctrines are subject to the exception that this must 
not affect the rights of third parties.^ 



CHAPTER IV. 

EFFECT OF COVERTURE UPON THE WIFE'S INJURIES AND 

FRAUDS. 

§ 74. General Principle Stated. — Frauds and injuries may- 
have been committed by the wife ; or they may have been com- 
mitted upon the wife. Again, they may have been committed 
before coverture ; or they may have been committed during 
coverture. Once more, they may have reference to the per- 
son; constituting a bodily injury, such as assault and battery, 
or an injury to the character, such as slander ; or they may 
have reference to property. But in any event, so far as the 
fraud or injury is made the subject of a civil suit, the general 
principle of the wife's disability remains the same ; namely, 
that the husband compensates or receives the compensation. 

§ 75. Torts by the Wife ; Husband and Wife sued together, 
or Husband alone ; Presumption of Coercion, &c — We have 
seen that one spouse is not criminally answerable for the 
other.2 But as to private wrongs or torts, the general rule 
of law is that the husband is Hable for the frauds and injuries 
of the wife, whether committed before or during coverture ; 
if committed under his coercion or by him alone, he, and he 
alone, is liable; otherwise, both are, for the time being, 
liable.'^ Where the fraud or injury is committed in his com- 

1 As to indorsement or assignment Gage i\ Reed, 15 111.403; Carlr. Won- 
of such a debt, or its evidence before der, 5 Watts, 97 ; Whitman v. Delano, 
marriage, cf. Guptil v. Home, 63 Me. 6 N. H. 543 ; Gray v. Thacker, 4 Ala. 
405 ; Long v. Kinney, 49 Ind. 2;!5. 136 ; McKeown v. Johnson, 1 McCord, 
And see Price v. Price, L. R. 11 Ch. D. 578 ; Benjamin v. Bartlett, 3 Miss. 86 ; 
163. Wright v. Kerr, Addis. 13; Cassin v. 

2 Supra, § 49. Delnny, .38 N. Y. 178 ; Ball v. Bennett, 

3 2 Kent Com. 149 ; Bing. Inf. 2-56, 21 Ind. 427 ; Marshall v. Cakes, 51 Me. 
257: Angel v. Felton, 8 Johns. 149; 308; Clark «. Bayer, 32 Ohio St. 299. 

114 



CHAP. IV.] wife's injuries AND FRAUDS. § 75 

pany and by his order, coercion is presumed, and the husband 
becomes, prima facie, the only wrong-doer ; and where com- 
mitted without his order and in his absence, the wife is in 
reality the offending party, while the husband has become 
responsible for her acts by reason of her coverture. In the 
latter class of cases the husband is properly joined with his 
wife in the suit ; for, if the wife alone were sued, his property 
might be seized without giving him an opportunity for de- 
fence ; and if the husband alone were sued, he would become 
chargeable absolutely. In the former class of cases the hus- 
band should be sued alone. ^ Where the tort is committed 
by both spouses, and the wife does not act by coercion, both 
husband and wife may be jointly sued.^ 

This presumption of coercion, too, is much the same in 
civil as in criminal offences.^ It is said by Chancellor Kent 
that a wrong committed by the wife " in company with " 
her husband, or " by his order," renders the husband alone 
liable ; but this statement is too general and should be 
limited to the case of her acting by his coercion.^ It is said 
that the privilege of presumptive coercion extends to no 
other person than a wife, not even to a servant.^ The pres- 
ence of the husband and his direction should usually be con- 
current, in order to amount to coercion ; and the presumption 
of a wife's coercion in a tort is, of course, not conclusive, but 
may be controlled by evidence of the facts.^ 

As to private wrongs the question occurs, why should the 
husband be made to stand in the wife's place where the 
offence is considered against an individual, any more than 
when it is between herself and the State. This seems to be 
the true answer, as in case of her debts dum sola ; namely, 

1 Park V. Hopkins, 2 Bailey, 411; s Reeve Dom. Rel. 72; Barnes r. 
Matthews v. Fiestel, 2 E. D. Smith, 90 ; Harris, Busbee, 15 ; Griffin v. Reynolds, 
Jackson v. Kirby, 37 Vt. 448. 17 How. (U. S.) 609. 

2 12 Mod. 246 ; Vine v. Saunders, 5 6 Cassin v. Delany, 38 N. Y. 178 ; 
Scott, 359; Marshall v. Oakes, 51 Me. Ferguson v. Brooks, 67 Me. 251 ; s^ipra 
308 ; Gray, C. J., in Handy v. Foley, § 50. Coercion, if relied upon, should 
121 Mass. 259. be set up in defence. See Clark v. 

3 Supra, §50. Bayer, 32 Ohio St. 299; Ferguson v. 
* Gray, C. J., in Handy v. Foley, 121 Brooks, 67 Me. 251. 

Mass. 259 ; 2 Kent Com. 149. 

115 



§ 76 THE DOMESTIC RELATIONS. [PART H. 

that the husband adopts her and her circumstances together ; 
that he takes her fortune, if she has one, and assumes all 
possible liabilities therefrom. 

This statement suggests that the husband's liability is 
after all a limited one, where he, in the first instance, was 
free from wrong ; that is to say, that the death of the wife 
before the recovery of damages puts an end to his liability 
altogether. This is correct, not only on the principle an- 
nounced in the case of the wife's debts dum sola, but because 
wrongs, being personal, die with the person, which last is the 
common explanation of this rule. If the husband dies before 
damages are recovered in the suit, the wife alone remains 
liable.^ So it would seem that the common law recognizes a 
liabilitj' on her part which continues through the marriage 
relation ; coverture operating, however, so as to suspend the 
remedy against the married woman, and to bring in as a joint 
part}^ the custodian of her fortune.^ 

§ 76. Torts by Wife which are based on Contract. — There 
are, however, not only torts simpliciter, or simple wrongs at 
law, but wrongs where the substantive basis of the fraud is 
the wife's contract. The common law has been supposed to 
apply with the same force in both cases, partlj'^ because in the 
latter instance the person injured would be otherwise without 
a remedy.'^ But some modern cases rule tliat though the 
husband is liable for the wife's general frauds, yet when the 

1 2 Bright Hus. & Wife, 22 n. ; and Eeynokls, 17 How. (U. S) 609 ; Road- 
see Stroop V. Swarts, 12 S. & R. 76. cap i-. Sipe, 6 Gratt. 213; Schoul. Hus. 

2 Hence husband and wife are sued & Wife, § 137. Or for the forcible re- 
together for the libel or slander of the moral of a gate. Handy v. Foley, 121 
wife. McElfreshr. Kirkendall, 36Iowa, Mass. 259. The fact that the husband 
224. Exemplary damages may be al- is made responsible by the fact of cover- 
lowed in such action. Fowler v. Chi- tnrc, and did not commit the wrong in 
Chester, 26 Ohio St. 9. And generally person, cannot go in mitigation of dam- 
for forfeitures under a penal statute ages. Austin v. Wilson, 4 Gush. 273. 
where she participated. Austin r. Wil- The husband has full management 
son, 4 Gush. 273; McQueen r.Fulgham, of the defence. And we need hardly 
27 Tex. 463; Baker v. Young, 44 111. add that he may compromise without 
42; Enders v. Beck, 18 Iowa, 86. As his wife's assent. Goolidge v. Parris, 
to suits to recover penalties for usury, 8 Ohio St. 594. 

see Jackson v. Kirby, 37 Vt. 448 ; 3 Macq. Hus. & Wife, 130, 131 ; 

Porter v. Mount, 43 Barb. 422. So, Head v. Briscoe, 5 Car. & P. 484, per 
too, for assault and battery. Griffin v. Tindal, C. J. ; Reeve Dom. Rel. 72, 73. 

116 



CHAP. IV.] wife's injuries AND FRAUDS. § 77 

fraud is directly connected with her contract, and is the means 
of effecting it, and part and parcel of the same transaction, the 
wife cannot be responsible, nor can the husband be sued for 
the fraud together with the wife.^ 

There are, however, cases where the wife will bind her 
husband by her fraudulent representations on the ground of 
her agency.^ 

§ 77. Torts committed upon the "Wife. — So far as the hus- 
band is injured, his right of action is sole ; but where the wife 
is the meritorious cause of action, the spouses join as plain- 
tiffs. For injuries to the person or character of the wife, 
therefore, the husband and wife at the common law should 
sue together.^ But where the right of action for damages is 
founded on the prior possession of personal property, the hus- 
band must, at common law, sue alone, since his possession is 
the possession of both.*^ And the joinder of the wife in 
actions relating to personal property, where the injury was 
committed after marriage, is good ground of demurrer, or 
motion to arrest, or even of error after judgment.^ Whether 
the same principle applies to property of the wife parted with 
before marriage is not so clear. This is the rule, however, 
when the action is for a wrong, which before the marriage 
was committed in respect to such property.^ But where the 
trover is laid before the marriage, and the conversion after- 
wards, there has been some controversy, the result of which 
seems to be that the action is well brought, either with or 
without joining the wife, though the better course doubtless 
is to join the wife.'^ The principle sought is whether such a 



^ Liverpool Adelplii Loan Associa- statutory changes as to torts and 

tion V. Fairhurst, 9 Exch. 422. frauds of tlie wife, see c. post. 

2 Taylor v. Green, 8 Car. & P. 316; s Bing. Inf. & Gov. 247, Am. ed., 

Schoul. Hus. & Wife, § 136. A bus- and cases cited. 

band is liable in replevin for bis wife's * Bing. Inf. & Gov. 253, and cases 

unlawful detention of anotber's cbat- cited ; Gro. Eliz. 133 ; 1 Glut. PI. 93 ; 

tels under claim of title in berself. 1 Salk. 114. 

Choen v. Porter, 66 Ind. 194. But 5 Rawlins v. Rounds, 27 Vt. 17. 

•wbere there is no collusion apparent, ^ 3 Rob. Pract. 188 ; Milner r. 

a husband will not be committed for Milnes, 3 T. R. 627; Fewell v. GoUins, 

his wife's breach of injunction. Hope 1 Gonst. 207. 
V. Carnegie, L. R. 7 Eq. 254. For ^ Powes v. Marshall, 1 Sid. 172; 

117 



77 



THE DOMESTIC RELATIONS. 



[part II. 



suit amounts to a disaffirmance of the husband's constructive 
title to the goods on the marriage.^ 

The damages allowed as compensation for the frauds and 
injuries sustained by the wife go to the husband, as well as 
the rest of her personal property, if recovered during his life- 
time. But such suits survive to her where she is the meri- 
torious cause of action ; and on the death of the husband, 
pending legal proceedings, the wife may accordingly proceed to 



Ayling t-. Whicher, 6 Ad. & El. 259 ; 
Blackborne v. Haigh, 2 Lev. 107; 3 
Rob. Pract. supra. There is some un- 
certainty on this point, however. See 
Bac. Abr. Baron & Feme (K.) ; coidm, 
Brown v. Fifield, 4 Mich. 322; Well- 
born V. Weaver, 17 Ga. 267. 

1 As to injuries to the wife's real 
estate, see infra, ch. 6. On these prin- 
ciples it is held that husband and wife 
must sue together for libel or slander- 
ous words spoken against the latter. 
Smalley v. Anderson, 2 Monr. 56 ; 
Davies v. Solomon, L. R. 7 Q. B. 112 ; 
Throgmorton v. Davis, 3 Blackf. 383. 
These words must be actionable per se. 
See Beach v. Ranney, 2 Hill, 309 ; Sa- 
ville V. Sweeney, 4 B. & Ad. 514 ; Ryan 
V. Madden, 12 Vt. 51. As to slander 
of wife charging her with " adultery," 
see Shafer v. Ahalt, 48 Md. 171. Spe- 
cial damage should be sliown in order 
to sustain the action. lb. ; AUsop v. 
AUsop, 2 L. T. n. s. 290. W^ords charg- 
ing her, while unmarried, with fornica- 
tion, are actionable. Gibson v. Gibson, 
43 Wis. 23. Also for battery of the 
wife. Pillow V. Bushnell, 5 Barb 156. 
Also for injuries sustained by her 
through the negligence of a common 
carrier. Heirn v. McCaughan, 32Miss. 
17. Also for the malpractice of a 
physician, even though it afterwards 
cause her death. Cross v. Guther}', 2 
Root, 90 ; Hyatt v. Adams, 16 Mich. 
180. Also for frauds upon the wife, as 
in case of an action qui tarn to recover 
penalties for a fraudulent conveyance. 
Fowler ;; Frisbie, 3 Conn. 320. But 
see Crump i-. McKay, 8 Jones, 32, as 
to negligence "sounding in contract," 

118 



not admitted to be cause of action. 
Also for malicious prosecution. Laugh- 
lin V. Eaton, 54 Me. 156. And the rule 
is the same in all these cases, whether 
the fraud or injury was committed be- 
fore or during coverture. But if the 
wife be a privy to the wrong, or know- 
ingly suffer an injury to be committed 
upon her, the husband cannot maintain 
his action ; for his right to damages 
cannot be greater than hers would have 
been had she remained single. Pillow 
V. Bushnell, 5 Barb. 156. Nor can an 
action be maintained where the hus- 
band instigates the wrong. Tibbs v. 
Brown, 2 Grant's Cases, 39. Nor in 
slander where the words are not action- 
able, though the wife become ill in 
consequence of the slander. Wilson v. 
Goit, 17 N. Y. 442. In a joint action 
for personal wrong to the wife, the dec- 
laration should conclude " to their 
damage." Horton v. Byles, 1 Sid. 387 ; 
Smalley v. Anderson, 2 Monr. 56. And 
it is a well-recognized principle, both in 
England and America, that whenever 
the wife is the meritorious cause of 
action, her interest must appear on the 
face of the pleadings, or the omission 
will be considered fatal. Staley v. 
Barhite, 2 Caines, 221 ; Serres v. Dodd, 
5 B. & P. 405 ; Thorne v. Dillingham, 
1 Denio, 254; Pickering v. De Roche- 
mont, 45 N. H. 67. 

Where the tort was committed be- 
fore the woman was married, the action, 
if she marries afterwards, should be 
brought by husband and wife ; or if she 
marries pending the action, the hus- 
band is entitled to be admitted as a 
plaintiff. Gibson v. Gibson, 43 Wis. 23. 



CHAP. IV.] wife's injuries AND FRAUDS. § 77 

judgment and collect the damages for herself ; or if her hus- 
band had never brought an action, she may then do so in her 
own right. ^ The husband, on the other hand, has no such 
interest in the suit at common law that he ma^^ prosecute it 
in his own name after his wnfes death. His joinder in the 
first place was only because of the marriage relation. He 
may, however, under some statutes, be let in as her adminis- 
trator, and in such capacity prosecute the suit to its conclu- 
sion.2 If the wife dies after judgment, the husband surviving 
may take the benefits of the suit ; for a judgment debt takes 
the place of the original cause of action. The death of the 
wife, pending suit for her personal tort, put an end to the 
action altogether by the old law.^ But where the so-called 
tort is referable rather to some breach of contract, it might 
survive.* 

Since the husband is at the common law entitled to the 
society and services of his wife, two separate causes of action 
may arise from injuries inflicted upon her person. One, in 
the name of both for her own injuries, we have just con- 
sidered ; the other is in the name of the husband alone per 
quod consortium amisit.° Thus, if the wife be wantonly 
bruised and maltreated, her husband may bring his special 
action per quod for the loss of her society and for his medical 
expenses. But there can be no special damage recovered by 
the husband by way of aggravation in the joint suit for his 
wife's injuries, which is founded in her meritorious claim. 
Thus, in the joint action for an assault on the wife, the 
surgeon's bill cannot be recovered ; if for slander of the wife, 
the loss of wages cannot be claimed ; thei'e the sole right of 
the husband should be sued on in his name.*^ Nor, on the 

1 Bing. Inf. & Cov. 247, 248 ; New- & 3 CI. Com. 140 ; Cro. Jac. 501 ; ih. 
ton V. Hatter, 2 Ld. Raym. 1208 ; An- 538 ; Mewliirter v. Hatten, 42 Iowa, 
derson v. Anderson, 11 Bush, 327. 288; Brockbank v. Whitehaven Junc- 

2 Chitty PI. 74; Norcross v. Stuart, tion R. R. Co., 7 Hurl. & Nor. 834; 
50 Me. 87 ; Pattee v. Harrington, 11 Whitcomb v. Barre, 37 Vt. 148 ; Ka- 
Pick. 221; Crozier v. Bryant, 4 Bibb, vanaugh v. Janesville, 24 Wis. 618; 
174 ; Saltmarsh v. Candia, 51 N. H. 71. Hooper v. Haskell, 56 Me. 251. 

2 Bac. Abr. Baron & Feme (K.) ; ^ Dengate v. Gardiner, 4 M & W. 

Meese r. Fond du Lac, 48 Wis. 323. 6; Kavanaugh v. Janesville, 24 Wis. 

4 Long V. Morrison, 14 Ind. 595. 618 ; King v. Tliompson, 87 Penn. St. 

119 



§ 78 THE DOMESTIC RELATIONS. [PART II. 

other hand, can the husband recover for the wife's mental 
anguish or other damages incidental to the joint suit in his 
sole suit for damages.^ It would appear that the husband 
may release the damages for his wife's iujuries, and then re- 
cover for the loss arising to himself alone ; he may certainly 
release or compromise. ^ Where the husband is alone en- 
titled to the damages, and in case of his death they would 
go to his representatives, he must sue alone ; and his sole 
suit will not be defeated by his wife's death before action 
brought.^ 

Of the suits which the husband may bring for loss of his 
wife's society, that for enticing a wife away has already been 
considered.^ Somewhat akin to this is his action for his 
wife's seduction, founded on the same general marital rights. 
But the common law still keeps up its legal fiction of the 
wife's civil incapacity, and treats the seducer as guilty of 
trespass by force of arms, whether the wife actually consent 
to the guilt or not.^ A husband who lives apart from his wife, 
under articles of separation or a decree of divorce from bed 
and board, cannot maintain a suit for damages per quod, since 
he has suffered no loss of her society.^ The wife was never 
permitted to sue for the loss of her husband's society and ser- 
vices,'' though on general principle it is hard to see why, save 
for her* coverture, she should not have been. 

§ 78. Torts upon the Wife ; Instantaneous Death ; Statutes. 
— Instantaneous death of the husband or wife, at the com- 
mon law, gave no right of action to the survivor. Nor could 



365. See Lewis v. Babcock, 18 Johns, usual. Chamberlain v. Hazlewood, 5 

443. M. & W. 517. 

1 Hooper v. Haskell, 56 Me. 251. e Schoul. Hus. & Wife, § 140; Fry 

" Soutliworth V. Packard, 7 Mass. y. Derstier, 2 Yeates, 278; Ballard v. 

95; Anderson v. Anderson, 11 Bush, Russell, 36 Me. 196; Burger v. Bels- 

327. ley, 45 111. 72. 

3 Wheeling v. Trowbridge, 5 W. Va. ' 2 Kent Com. 182 ; Tuttle v. Chicago 

353. R., 42 Iowa, 518 ; Carey v. Berkshire 

1 Supra, § 41. As to this seduction II., I Cush. 475. An action cannot 

suit, see Schoul. Hus. & Wife, § in general be maintained by tlie wife, 

140. there being no misfeasance towards her 

5 .3 Bl. Com. 139, 140. An action independently of a contract with the 

on the case is allowable, though not husband alone. Longmeid i-. HoUiday, 



6 Exch. 761. 



120 



CHAP. IV. J wife's INJUKIES AND FRAUDS. 



§79 



the husband, whose wife was thus killed by another's care- 
lessness, sue per quod, because he could not be said to have 
lost her society during any portion of her life.^ A wife, of 
course, could not sue for the death of her husband.^ Where 
the wife dies in consequence of one's carelessness, as in case 
of malpractice, the husband may recover damages for the 
injury accruing to himself before, but not for the injury in 
consequence of, the death.^ Modern legislation has supplied 
many new remedies much needed in these classes of cases, 
particularly with reference to injuries and loss of life occa- 
sioned through the carelessness of railroad companies and 
other common carriers.'* 

§ 79. Torts upon the "Wife ; Miscellaneous Points. — It should 
be observed that, wherever husband and wife are both in- 
jured, they liave two distinct and separate causes of ac- 
tion, which must not be confounded. Thus, for libel 
against husband and wife, the husband must sue alone 
for the libel against him, and husband and wife jointly for 
the libel against her; they cannot sue together for the libel 



1 Yelr. 89, 90; Baker v. Bolton, 1 
Camp. 493 ; Green v. Hudson R. R. 
Co., 28 Barb. 9: Hallenbeck v. Berk- 
shire R. R. Co., 9 Cush. 109. See 
Georgia R. R. Co. v. Wynn, 42 ^eo. 
331, wliich considers a statute provid- 
ing only for a wife's suit by reason of 
her husband's death, by railroad acci- 
dent, and not for a luisband's suit by 
reason of his wife's death. 

- 2 Kent Com. 182 ; Carey v. Berk- 
shire R., 1 Cush. 475. 

3 Hyatt V. Adams, 16 Mich. 180 ; 
Long V. Morrison, 14 Ind. 595. 

* Dickens v. N. Y. Central R. R. Co. 
28 Barb. 41 ; Stat. 9 & 10 Vict. c. 93 ; 
Mass. Gen. Stats, c. 63, § 97. And 
wlierever by special statute some riglit 
of action for damages is given (as 
against a town for a defective high- 
way), some of our courts seem disposed 
to allow the husband's medical ex- 
penses by way of aggravation, in the 
joint suit of husband and wife, even 
though he may not be empowered to 



bring a suit in his own name to recover 
for them as damages per quod. Har- 
wood V. Lowell, 4 Cush. 310; Sanford 
V. Augusta, 32 Me. 53G; Hunt v. Win- 
field, 36 Wis. 154 ; Fuller v. Naugatuck 
R R. Co., 21 Conn. 557. See Carlisle 
V. Town of Sheldon, 38 Vt. 440. In 
some of these statutory cases, however, 
the husband may bring his separate 
suit per quod as before, in addition to 
the suit for the wife's injury. Klein v. 
Jewett, 26 N. J. Eq. 474 ; Kavanaugh 
V. Jauesville, 24 Wis. 618 ; Whitcomb 
V. Barre, 37 Vt. 148. 

Where husband and wife were in- 
jured simultaneously, and both died, the 
husband a little before the wife, it was 
held that the riglit of action vested 
absolutely in the wife. Waldo v. Good- 
sell, 33 Conn. 462. Where the action 
is brought in assumpsit, as upon a car- 
rier's contract to carry safely, the con- 
siderations are those of contract, not 
tort. See Pollard v. New Jer- '>v R., lOT 
U. S. Supr. 223. 

121 



§ 80 THE DOMESTIC RELATIONS. [PABT II. 

against both.^ But actions are sometimes consolidated in 
practice.^ 

We may notice finally one important distinction made be- 
tween the wife's general contracts and her frauds and inju- 
ries. In the one case the man is held liable to third parties 
for her acts as agent, even though never married to her ;^ 
and simple cohabitation is sufficient to charge him. But 
simple cohabitation will not be enough to make him respon- 
sible for her civil injuries. Marriage in fact is essential. And 
this latter principle applies likewise where he seeks indemnity 
for her injuries.* The facility with which an agency is created 
at law may serve to explain the difference between the two 
cases. 



CHAPTER V. 



EFFECT OF COVEETUKE UPON THE WIFE S PERSONAL 

PROPERTY. 

§ 80. Wife's Personal Property in General; Marriage a Gift 
to the Husband. — Personal property comprises things'in pos- 
session, or goods and effects, such as money, furniture, and 
farm stock, which one holds as the property itself, and things 
in action, such as bonds and other outstanding debts.^ The 
husband's title to his wife's personal property at the common 
law is either absolute or qualified, according as the particular 
property belongs to the one class or the other. We shall 
therefore, in this chapter, treat of, first, the wife's things or 
personal property in possession ; second, her things or per- 
sonals in action. 

1 Gazynski v. Colburn, 11 Cush. 10 ; 5 2 Bl. Com. 389, 396 ; 2 Kent Com. 

EbersoU i: King, 3 Binn. 5-55; Xewton 351. See 1 Schoul. Pers. Prop. 32-37, 

V. Hatter, 2 Ld. Raym. 1208. For statu- where tlie leading distinctions between 

tory clianges as to injuries sustained " tilings in possession " and " things in 

by tlie wife, see c. /wsi'. action" are noticed at length, and 

' Henistead v. Gas Light Co., 3 Hurl, where reasons are stated why the terms 

& C. 745. " corporeal " and " incorporeal " per- 

3 Supra, § 71. sonal property should be preferred at 

* Overholt v. Ellswell, 1 Ashm. 200. this day. 
See Norwood v. Stevenson, Andr. 227.. 

122 



CHAP, v.] wife's personal phoperty. § 81 

But in general it may be premised that the wife's personal 
property goes to the husband, whether belonging to her at 
the time of marriage, or acquired afterwards by gift, bequest, 
or purchase ; whether actually or beneficially possessed ; 
whether principal fund or income. So her earnings belong to 
her husband. Marriage, therefore, operates in this respect as 
a gift to the husband ; and while the gift is only qualified, so 
far as things in action are concerned, it lies in his power to 
make the gift absolute during coverture.-'- 

This privilege of the husband lasts as long as the marriage 
relation continues, even though he be living apart from his 
wife in adultery, and she acquire the property by her own 
labor 2 or by bequest.^ Neither divorce from bed and board, 
nor separation, takes away his right.^ But divorce from the 
bonds of matrimony, or the death of either party, puts an end 
to the gifts of coverture, leaving open the adjustment of the 
rights of the respective parties with one another, or between 
the survivor and the representatives of the deceased, on other 
principles to be hereafter explahied. 

And it is a matter of course that the wife's property should 
be hers in her own right, in order that the husband's title 
may attach. For property may come to her with restrictions 
upon the husband's rights, such as the giver has seen fit to 
imjjose.^ Her paraphernalia follow a rule somewhat pecu- 
liar.^ And, as we shall see in later chapters, much of the 
common law bearing upon this subject is practically super- 
seded by the law of the wife's separate property. 

§ 81. Earnings of Wife vest in Husband. — Earnings of the 
wife belong to the husband. The rule of the common law is 
that he takes all the benefits of her industry.^ This rule 

1 1 Bright Hus. & Wife, 34, 35 ; Co. Lane, 2 Chitty, 117 ; Washburn v. Hale, 
Litt. 305 a, 351 6 ,- 2 Kent Com. 130, 10 Pick. 429 ; Pi%scott v. Brown, 23 
&c. ; Campbell v. Galbreath, 12 Bush, Me. 305 ; 1 Roll. Abr. 343. But see 
459. Divorce, infra. 

2 Russell V. Brooks, 7 Pick. 65 ; Tur- s Co. Litt. 351 ; 11 Mod. 178. 

tie V. Muncy, 2 J. J. Marsh. 82; Arm- 6 gee post, cs. 15, 16, as to rights 

strong V. Armstrong, 32 Miss. 279. upon death of a spouse. 

3 Vreeland v. Ryno, 26 N. J. Eq. 7 Macq. Hus. & Wife, 44, 45 ; Reeve 
160. Dom. Rel. 63; McDavid v. Adams, 77 

*. Glover V. Proprietors of Drury 111.155; Yopst v. Yopst, 51 Ind. 61. 

123 



§ 82 THE DOMESTIC RELATIONS. [PART II. 

applies to money earned, and to other produce of the wife's 
earnings.^ He alone can give a discharge for any demand 
which may arise from her services. He may of course con- 
stitute her his agent for receiving the pay to herself; but, 
without evidence of some such authority, the person who 
employs her, as a nurse for instance, cannot protect himself 
by showing her separate receipts.^ For these earnings the 
husband sues alone, and in his own name.^ He may consent 
that the}^ be her own, but that right rests upon his consent, 
and raises other questions to be considered hereafter ; * nor 
can that consent be exercised in disregard of his existing 
creditors.^ It follows that the proceeds of the joint labor of 
husband and wife belong at common law to the husband ; as 
where, for instance, thej^ raise cotton together.*^ 

§ 82. Wife's Personal Property in Possession. — Now to take 
the broad division of the common law as applied to all the 
wife's personal property. First, as to the wife's choses or per- 
sonals in possession, or corporeal personal property. To these 
the husband's riffht at common law is immediate and absolute. 
He may dispose of them as he sees fit during his life, whether 
with or without his wife's consent ; he may bequeath them 
by will ; and after his death such property is regarded as 
assets of his estate, the title passing to his executors and 
administrators, to the exclusion of the wife, though she sur- 
vive him." 

If the wife's interest in personal property be that of a ten- 
ant in common, the husband becomes a tenant in common in 

1 Bucher ?;. Ream, 68 Penn. St. 421 ; 6 Bovvden v. Gray, 49 Miss. 547. 
Hawkins v. Providence R., 119 Mass. ' Co. Litt. 300, 351 h ; 2 Kent Cora. 
596. 143; Legg v. Legg, 8 Mass. 99; Lam- 

2 Offley V. Clay, 2 Man. & Gr. 172; phir v. Creed, 8 Ves. 599; Winslow ;•. 
and see Glover v. Drury Lane, 2 Cliitt. Crocker, 17 Me. 29 ; Bing. Inf. & Gov. 
117; Russell v. Brooks, 7 Pick. 6-5. 208, cases cited by Am. ed. ; Hoskins 
But see Starrett v. Wynn, 17 S. & R. v. Miller, 2 Dev. 360 ; Hyde v. Stone, 
130. 9 Cow. 230 ; Morgan v. Thames Bank, 

3 Gould V. Carlton, 55 Me. 511; 14 Conn. 99; Hawkins v. Craig, 6 
McDavid v. Adams, 77 111. 155. Monr. 257 ; Caffee v. Kelly, 1 Busb. 48 ; 

* See post, c. 12, as to wife's power Skillman v. Skillman, 2 Beasley, 403; 

to trade, &c. Hopkins v. Carey, 23 Miss. 54 ; Crop- 

5 Cramer v. Bedford, 2 C. E. Green, sey v. McKinney, 30 Barb. 47 ; Carleton 

367 ; Postnuptial Settlements, post ; v. Lovejoy, 54 Me. 445. 
Glaze V. Blake, 56 Ala. 379. 

124 



CHAP, v.] wife's personal PROPERTY. § 82 

her stead.^ So corporeal chattels of a female ward, in the 
hands of her guardian, being legally hers at the time of mar- 
riage, become her husband's, and his marital riglits attach at 
once, notwithstanding the guardian retains possession longer.^ 
The wife's vested remainder in personal estate goes to the 
husband on termination of the particular estate ; and where 
both husband and wife die during the continuance of the 
particular estate, the husband's representatives, and not the 
wife's, are held to take such remainder.^ But the husband 
cannot be considered a purchaser by marriag-e for a valuable 
consideration against a legal title admitted to be valid by his 
wife before marriage.* 

Chattels bequeathed to the wife, without restriction, pass 
to the husband at once like her other things in possession.^ 
So all her movables, such as jewels, household goods, furni- 
ture, and the like, also cash in her hands, go to him absolutely 
and at once, whether owned by the wife at the time of mar- 
riage or nominally vesting in her at some period of her cover- 
ture. Whether money at her banker's follows this same 
principle may depend upon a distinction first taken by Sir 
William Grant in Carr v. Carrfi He there says that a bal- 
ance at a banker's is a debt and not a deposit. But if the 
money were delivered to the banker in a sealed bag, it would 
then be truly a depositum. It would then have what is called 
an ear-mark ; in other words, it would be a specific chattel, 
and, as such, would vest by the marriage in the husband as 
his absolute property.^ Therefore, should the husband die 
without recovering such specific chattels or goods, they would 
belong to his representatives, and not to the wife by right of 

1 Hopper V. McWhorter, 18 Ala. Crane v. Brice, 7 M. & W. 183 ; Rex v. 



229. French, R. & R. C. C. 491. 
2 Sallee v. Arnold, ,32 Mo. 532 ; 6 i Mer. 543, w. 

Chambers v. Perry, 17 Ala. 726 ; Mc- ^ Per Sir William Grant in Carr v. 

Daniel v. Whitman, 16 Ala. 348 ; Miller Carr, 1 Mer. 548 ; Hill v. Foley, 1 Phil. 

V. Blackburn, 14 Ind. 62. And see 404. Money deposited witli a banker 

Davis's Appeal, fiO Penn. St 118. in the usual way is money lent to tlie 

^ Tune r. Cooper, 4 Snced, 296. banker, with the obligation superadded 

* Willis r. Snelling, 6 Rich. 280 that it be repaid when called for. Pott 

5 Shirley v. Shirley, 9 Paige, 363 ; v. Cle?, 11 Jur. 289. 



Newlands v. Payntcr, 4 M. & C. 408; 



125 



§ 83 THE DOMESTIC RELATIONS. [PAET n. 

survivorship.^ The true test of the husband's title is this : 
whether the personal property in question was or was not 
technically a thing in possession. 

As to the wife's personal apparel, the doctrine oi parapher- 
nalia will be found to reserve to her a needful right in the 
most delicate instance Avhere controversy can arise. Other- 
wise it would appear that her apparel belongs to her husband 
at common law ; and he only can sue others for its loss.^ She 
cannot sell or give her clothing away, probabl}', except by vir- 
tue of an agency; which agency, however, might be readily in- 
ferred from circumstances. But the wife's reasonable clothing 
belongs to the husband for the wife's use, like her victuals 
and other necessaries, and he must not wantonly deprive her 
of it so as to leave her destitute.^ 

§ 83. Wife's Personalty in Action. — Secondly. The hus- 
band's right to his Avife's incorporeal personal property — or 
at least to her chosen in action^ as they are commonly called 
— is qualified. Marriage operates, not as an absolute gift of 
such property, but rather as a conditional gift, the condition 
being that the husband shall do some act, while coverture 
lasts, to appropriate the choses to himself. If he happen to 
die before he lias done so, such choses, not having been re- 
duced to possession, remain the property of the wife, and his 
personal representatives have no title in them.* But this 
applies only to outstanding things in action ; for some may 
have been reduced to possession by the husband during his 
lifetime, and some may not. If the wife die before the hus- 
band has reduced the chose to possession, he has no title in it 
as husl)and, but it goes, strictly speaking, to her administrator 
or personal representative,^ though under our statutes the 

1 Hawkins v. Providence R., 119 Wife, 36 ; 2 Kent Cora. 135 e< se7 , and 
Mass. 59G. cases cited; Scawen v. Blunt, 7 Vcs. 

2 See Delano v. Blanchard, 52 Vt. 204; Fleet i-. Perrins, L. E. 3 Q. B. 
578; Hawkins v. Providence R., 119 536; Lan^liam v. Nenny, 3 Ves. 467; 
Mass. 596. Tritt v. Colwell, 31 Penn. St. 228 ; 

a Powes V. Marshall, 1 Sid. 172; Needles v. Needles, 7 Ohio St. 432; 

Macq. Hus. & Wife, 19, 20; 1 Bac. Burleigh w. Coffin, 2 Post. 118. 
Abr. 700, tit. Baron & Feme, V. ; 1 ^ Walker v. Walker, 41 Ala. 353 ; 

Roper Hus. & Wife, 169 ; 1 Vent. 261. Fleet i-. Perrins. L. R. 3 Q. B. 536; 

* Co. Litt. 351 ; 1 Bright Hus. & Scrutton v. Pattillo, L. R. 19 Eq. 369. 

126 



CHAP, v.] wife's personal PROPERTY. § 83 

husband has commonly the right both to administer and in- 
herit a good part, at least, of his wife's personal property, 
and she cannot will otherwise.^ 

With respect to such choses in action as may accrue to the 
wife solely, or to the husband and wife jointl}^ during cover- 
ture, the same doctrine applies. The husband may disagree 
to his wife's interest and make his own absolute at any time 
during coverture by recovering in suit in his own name or 
otherwise reducing them to possession. But until such dis- 
agreement, such choses in action belong to the wife, and, if 
not reduced into possession by the husband, will likewise 
survive to her.^ 

It becomes important, therefore, at common law, to dis- 
tinguish the wife's things in action from her things in posses- 
sion. To the class of things in action belong such property 
as rests upon obligation, contract, or other security, for pay- 
ment ; and not only rights presently vested and capable of 
immediate reduction to possession, but those which are 
contingent upon some event or reversionary upon some prior 
interest.^ Debts owing the wife, arrears of rents, of profits, 
and of income, also outstanding loans, are plainly choses in 
action} Mone}^ due on mortgage is, before foreclosure, a chose 
in action, and even though lent before coverture with cove- 
nants running to the wife's heirs or executors, it must follow 
the usual rule.° So are bonds and certificates of stock.^ 
Income of a chose in action is as much a chose as the principal 
itself ; and according to the ordinary rule the wife becomes 
entitled to it by survivorship.''' A devise of land to be sold 

1 See, as to dissolution by death, by the husband of an infant wife, see 
post. Shanks v. Edmondson, 28 Gratt. 804. 

2 Coppin V. , 2 P. Wms. 497 ; 3 See Bell Hus. & Wife, 52. 

Day V. Padrone, 2 M. & S. 396, n. ; * 1 Bright Hus. & Wife, 30 ; Clapp 

Howell V. Maine, 3 Lev. 403 ; Wildraan v. Stoughton, 10 Pick. 463. 

V. Wildman, 9 Ves. 174 ; 1 Bright Hus. 5 Bell Hus. & Wife, 52; contra, Tur- 

& Wife, 37 ; 2 Kent Com. 135, and cases ner v. Crane, 1 Vern. 170; Rees v. 

cited ; Wilkinson v. Charlesworth, 11 Keith, 11 Sim. 388. 

Jur. 644 ; Standeford v. Devol, 21 Ind. 6 Slaymaker v. Bank, 10 Penn. St. 

404. Reduction during the minority 373; Wells u. Tyler, 5 Post. 340. 

of an infant husband is good, though ^ Wilkinson v. Charlsworth, 11 Jur. 

he dies before majority. Ware v. 644. 

Ware, 18 Gratt. 070. As to reduction 

127 



§ 84 THE DOMESTIC RELATIONS. [PAET II. 

and proceeds to be divided among certain persons, gives to 
each a chose in action.^ Bills of exchange and promissory 
notes, unlike many choses in action in being legally transfer- 
able by simple indorsement, are now considered choses in 
actio7i of a peculiar nature, though it was formerly thought 
that they vested absolutely in the husband by marriage ; ^ 
and bank checks, certificates of deposit,^ and public securities 
of a negotiable character,^ may be placed in the same class. 
Legacies and distributive shares are sometimes treated as 
though they vested absolutely in the husband without reduc- 
tion into possession ; but unquestionably the better opinion 
is that they are choses in action (especially if no decree of dis- 
tribution has been rendered, or the estate is unsettled), in 
which case the creditor of the husband ought not to be 
allowed to attach them before the latter has done some act 
disaffirming his wife's title.^ The wife's choses in action must 
not be confounded with her goods or specific chattels in the 
hands of third parties, which, unlike her choses in action, vest 
in the husband absolutely by the marriage.® Money rights 
or claims generally, as for instance a claim for damages grow- 
ing out of a tort committed upon the person or character of 
the wife, fall under our present head.' 

§ 84. Wife's Personalty in Action ; Reduction into Possession. 
— What acts on the husband's part amount to an appropri- 
ation of his wife's choses in action, or, in other words, consti- 
tute reduction into possession so as to bar her rights by 

1 Smilie's Estate, 22 Penn. St. 180. 1 Vern. 261. But even in Massachu- 

2 Gaters v. Jladdeley, 6 M. & W. setts, wlicre the doctrine prevails which 
423; Nash r. Nash, 2'Madd. 133; 1 is disapproved in the text, it is held 
Roper Hus. & Wife, 211 ; 1 Briglit Hus. that if the husband die before judg- 
& Wife, 37 o, 38; 9 Jur. 827; Phelps ment in the suit by creditors, -liis wife's 
r. Phelps 20 Pick. 5'6 ; Lenderman v. survivorship is not barred. Strong v. 
Talley, 1 Houst. 523. Smith, 1 Met. 47G. See Parks v. Cush- 

3 rjodgers v. Pike County Bank, 60 man, 9 Vt. 320, which allows the wife's 
Mo. 500. share to be attached in trustee process 

* Such, for instance, as United by the husband's creditors after a de- 
States bonds. Brown u. Bokee, 53 Md. 'jree of distribution. 
155. •■' See snpra, § 82 ; 1 Schoul. Pers. 

5 2 Kent Com. 135 ; Schoul. Hus. & Prop. .32-37. 
Wife, § 1-50 and cases cited ; Carr v. '• Anderson v. Anderson, 11 Bush, 

Taylor, 10 Ves. Jr. 574, 518 ; Lamphir 827. 
V. Creed, 8 ib. 509 ; Palmer v. Trevor, 

128 



CHAP, v.] wife's personal peopeety. § 84 

survivorship, is a doctrine of common law of much impor- 
tance. Mere intention on his part to appropriate is not 
sufficient. The purpose must be followed by some positive 
act asserting an ownership.^ Nor is actual possession of the 
chose in action a sufficient reduction per se, for the husband's 
intention may be to hold it in tlie right of another. Thus he 
may take the property in trust for his wife ; and if so, he is 
accountable like any other trustee;^ So he may receive it as 
a loan from his wife, in which case he shall refund it like any 
other borrower. That reduction into possession which makes 
the cJiose absolutely as well as potentially the husband's, is a 
reduction into possession, not of the thing itself, but of the 
title to it.3 Constructive possessions are not favored in law 
when they tend to defeat the wife's survivorship. Yet re- 
duction into possession of the wife's chose in action, un- 
explained by other circumstances, is ijrima facie evidence of 
conversion to the husband's use, and is therefore effectual.* 
And reduction of a fund may be sufficient upon the happen- 
ing of a condition annexed to it.^ 

The doctrine of reduction into possession offers many very 
nice distinctions, involving conflicting rights of considerable 
magnitude. Courts of equity, which have taken this subject 
under their especial control, seem to lay down variable rules ; 
and it must be confessed that the law of reduction is so built 
upon exceptions, that one may more readily determine what 
acts of the husband do not, than what acts do, bar the wife's 
survivorship. Another difficulty in dealing with this subject 
appears from the circumstance that personal property is 
rapidly growing, and species of the incorporeal sort are de- 
veloped quite unknown to the old common law ; while, on 
the other hand, the doctrine of the wife's separate estate, 
under the influence of equity and modern legislation, has 
expanded so fast as to furnish already new elements of con- 

1 Blount i'. Bestland, 5 Ves. Jr. 615. 3 Strong, J., in Tritt's Admr. v. 

2 Baker v. Hall, 12 Ves. Jr. 497 ; Caldwell's Admr., 31 Penn St. 233. 
Estate of Hinds, 5 Wliart. 1.38 ; May- * Johnston v. Johnston, 1 Grant Cas. 
field V. Clifton, 3 Stew. 375; Resor y. 468. 

Resor, 9 Ind. 347 ; Bell Hus. & Wife, 6 Dunn v. Sargent, 101 Mass. 336. 
67. 

9 129 



§ 85 THE DOMESTIC EELATIONS. [PART II. 

sideration for most of the latest reduction cases, threatening 
to extinguish at no distant day all the old learning ou the 
subject, even before its leading principles could be clearly- 
shaped out in the courts.^ 

§ 85. Wife's Personalty in Action ; Wife's Equity to a Settle- 
ment. — The wife's equity to a settlement, which constitutes 
an important branch of the English chancery jurisprudence, is 
closely connected with the husband's right of reduction into 
possession. Whenever the husband or his representative has 
to seek the aid of a court of chancery in order to recover his 
wife's property, he must submit to its order of a suitable set- 
tlement from the fund. This settlement, which is made npon 
the wife for the separate benefit of herself and the children 
as a provision for their maintenance and comfort, is known 
as the wife's equity .^ Thus chancery, by a stretch of power 
somewhat arbitrary, interferes to do an act of justice. The 
doctrine seems to rest upon two grounds : first, that whoever 
comes into equity must do equity ; second, that chancery is 
the special champion of women and children.^ 

The smallness of a fund is no bar to the settlement,* The 
court exercises a liberal discretion in making an award to 
wife and children, even to the disadvantage of an insolvent 
husband's creditors.^ But the right to claim it is personal to 
the wife, may be barred or waived because of her acts or mis- 
conduct, and applies only to funds which have fallen into 
possession, or are not merely reversionary.*^ 



1 Tliis doctrine of reduction into Peachey Mar. Settl. 158, 159. This 
possession is set forth at length in jurisdiction appears to have been exer- 
Schoul. Hus. & Wife, §§ 154-159, with cised from tlie earliest period. Sturgis 
numerous cases cited. v. Champneys, 5 M. & C. 103, per Lord 

2 2 Kent Com. 139-14.3, and cases Chancellor Cottenham. For the doc- 
cited ; 1 Bright Hus & Wife, 2:>0-'265 ; trine of the wife's equity to a settle- 
2 Story Eq. Juris. § 635 Various acts ment in detail, which also gives rise to 
suffice, conclusive of the husband's in- nice distinctions, see Schoul. Hus. & 
tention. //;. §§ 154-156. Peduciion Wife, §§ 160-162. 

into possession by assignment affords * Schoul. Hus. & Wife, § IGl. 

ninny perplexing points. lb. § 157. 5 //,. § igi. 

The husband's right to reduce is one '^ lb. §§ 161, 162. An adequate set- 

of election. /6 § 156. There may be tlement on the wife may bar her equity, 

reduction by suit. lb. § 158. lb. § 162. 
8 Meals V. Meals, 1 Dick. 373 ; 

130 



CHAP, v.] wife's personal PROPERTY. § 86 

* 

The wife's right of equity to a settlement is something dis- 
tinct from her right of survivorship ; that is, her right upon 
her husband's death to property not reduced by him ; ^ and 
even if the husband has assigned the fund, the court will 
protect such equity upon due application.^ The husband's 
assignee for valuable consideration takes subject to the wife's 
equity, although her survivorship may have been barred by 
the assignment ;^ but the wife's antenuptial debts must first 
be provided for.* 

§ 86. Personal Property held by Wife as Fiduciary ; Wife as 
Executrix, ike. — Property held by the wife in a representative 
capacity at the time of marriage cannot vest in the husband ; 
for here she has no beneficial interest which the law can 
transfer to her husband.^ Any other rule would operate a 
fraud upon creditors and cestuis que trust. But if the wife be 
executrix or administratrix at the time of her marriage, the 
husband is entitled to administer in her right, by way of par- 
tial offset to his liability for her frauds and injuries in such 
capacity. As incidental to this authority, he may release and 
compound debts, and dispose of the effects, and reduce out- 
standing trust property into possession, as his wife might have 
done before coverture.^ He is accountable for all property 
which came to her possession, whether actually received by 
him or not.'^ A married woman cannot become executrix or 
administratrix without her husband's concurrence ; so long, 
at least, as he remains liable for her acts ; ^ nor will payments 

1 Norris v. Lantz, 18 Md. 260; Hall ^ /j. . Jenk. Rep. 79; Woodruffe v. 
i;. Hall, 4 Md. Cli. 283. Cox, 2 Bradf. Sur. 153; Keistcr v. 

2 Osborne u. Edwards, 3 Stock. 73. Howe, 3 Ind. 2G8 ; Claussen v. La 
8 Moore v. Moore, 14 B. Monr. 259 ; Franz, 1 Iowa, 220 ; Dardier v. Cliap- 

2 Story Eq. Juris. § 1412, and cases man, L. R. 11 Cli. D. 442. And may- 
cited. In McCaleb v. Crichfield, 5 foreclose a mortgage with his co-execu- 
Heisk. 288, the assignee was held en- trix. Buck v. Fischer, 2 Col. T. 709. 
titled to the residuary interest under a '^ Scott v. Gamble, 1 Stockt 218. 
will assigned by husband and wife For a case in which the husband put 
jointl3% no proceedings having been money of his own into a bank where 
set on foot by the latter during her life tlie wife had an account as executrix, 
to avoid the assignment or enforce her see Lloyd v. Pughe, L. R. 8 Ch. 88. 
equity. ** Administration has been granted 
* Barnard v. Ford, L. R. 4 Ch. 247. to a wife living apart from her husband 
5 Co. Lift. 3-51; 11 Mod. 178; 1 under a deed of separation with apt pro- 
Bright Has. & Wife, 39, 40. visions. Goods of llardinge, 2 Curt. 040. 

131 



§ 87 THE DOMESTIC RELATIONS. [PAET U. 

made to her in such capacity without his assent be valid.^ It 
is to be generally observed in cases of this kind that the right 
of disposition which the husband exercises is strictly the right 
of performing the trust vested in his wife, it being assumed 
that she cannot perform it consistently with her situation as a 
feme covert. His position is a fiduciary one, so tliat lie cannot 
purchase from a coadministratrix without consent of all ben- 
eficiaries in interest.''^ 

Qy marriage with a female guardian, too, the husband be- 
comes responsible for the mone3'S with which she may then or 
afterwards during coverture be chargeable in such capacity; 
the responsibility extending while she continues to act, 
whether it were proper for her to so continue or not.^ 



CHAPTER VI. 



EFFECT OF COVERTURE UPON THE WIFE's CHATTELS REAL 
AND REAL ESTATE. 

§ 87. Husband's Interest in Wife's Chattels Real, Leases, &c. 
— Chattels real, such as leases and terms for years, have many 
of the incidents of personal property. But as between hus- 
band and wife they differ from personal chattels. The title 
acquired therein by the husband is of a somewhat anomalous 

1 \ Salk. 282; Lover v. Lover, 6 where wife is executrix, see also post, 

Jur. 15(3 ; Bubbers v. Hardy, 3 Curt. § 87. 

50 ; cases cited in 2 lledf. Wills, 78. - Pcpperell v. Chamberlain, 27 W, 
As to the indorsement of a note pay- R. 410. An administrator cannot sue 
able to the wife as administratrix, see in his representative character upon 
Roberts v. Place, 18 N. H. 183. And contracts made after the death of the 
see Murphree v. Singleton, 37 Ala. 412. intestate merely in the course of carry- 
Statutes sometimes require the husband ing on the intestate's business. Hence 
to join in the wife's bond as executri.K, the husband must sue alone for goods 
and otherwise vary tlie rule of the text, supplied by husband and wife in car- 
See Schoul. Hus. & Wife, Appendix, rying on the business of tlie wife's 
See Airhart v. Murphy, 32 Tex. 131 ; father, whose administratrix the wife 
Cassedy v. Jackson, 45 Miss. 397. was ; and the joinder of the wife is 
Wife made sole executrix with her improper. Bolingbroke v. Kerr, L. R. 
husband's consent. In re Stewart, 56 1 Ex. 222. 
Me. 300. As to effect on chattels real ^ Allen v. McCuUough, 2 Heisk. 174. 

132 



CHAP. VI.] wife's chattels keal, &c. § 87 

nature ; for upon them marriage operates an executory gift, 
as it were, tlie husband's title being imperfect unless he does 
some act to appropriate them before the wife's death. He 
may sell, assign, mortgage, or otherwise dispose of his wife's 
chattels real without her consent or concurrence ; ^ excepting 
always such property as she may hold by way of settlement 
or otherwise as her separate estate.^ Chattels real, unappro- 
priated during coverture, vest in the wife absolutely, if she 
be the survivor. In all these respects they resemble choses in 
action. But if tlie husband be the survivor, such chattels will 
belong to him jure mariti, and not as representing his wife. 
And in this respect they resemble cJioses in possession. 

As to the wife's chattels real, therefore, husband and wife 
are in possession during coverture by a kind of joint tenancy, 
with the right of survivorship each to the other ; not, how- 
ever, like joint tenants in general, but rather under the title 
of husband and wife ; since husband and wife are, in contem- 
plation of law, but one person, and incapable of holding either 
as joint tenants or tenants in common.^ 

The wife's chattels real may be taken on execution for the 
debts of the husband while coverture lasts, by which means 
the title becomes transferred by operation of law to the cred- 
itor, and the wife's right, even though she should survive her 
husband, is gone.^ They may also be bequeathed by the hus- 
band by will executed during marriage, or by other instru- 
ment to take effect after his death ; with, however, this 
result; that if the wife dies first the bequest will be effectual, 
not having been subsequently revoked by the husband ; 
while, if the husband dies first, the wife will take the chattel 
in her own right, unaffected by any will which he may have 
made, or by any charge he may have created.^ 

1 Co. Litt. 46 c ,• 2 Kent Com. 134 ; 3 2 Kent Com. 135 ; Co. Litt. 351 b ; 
Sir Edward Turner's Case, 1 Vern. 7 ; Butler's note 304 to Co. Litt. lib. 3, 
Whitmarsh v. Robertson, 1 Coll. New 351 a. 

Cases, 570. As to what are chattels real, * 2 Kent Com. 134 ; Miller v. Wil- 

see 1 Sellout. Ters. Prop. 29, 45-73. liams, 1 P. Wms. 258. 

2 Tullett V. Armstrong, 4 M. & C. ^ Co. Litt. 351 a, 466; Roberts v. 
395; Draper's Case, 2 Freem. 29; Bui- Polgrean, 1 H. Bl. 535. 

lock V. Knight, Ch. Ca. 266. 

133 



§ 87 THE DOMESTIC RELATIONS. [PART II. 

It would appear that any assignment of a chattel real by 
the husband will completely appropriate it, even though made 
without consideration.^ And if a single woman has a decree 
to hold and enjoy lands until a debt due her has been paid, 
— known at the old law as an estate by elegit^ — and she 
afterwards marries, her husband ma}?^ make a voluntary as- 
signment so as to bind her.^ The right of appropriating the 
wife's chattels real is, therefore, to be distinguished from the 
right of reducing things in action into possession. The hus- 
band's interest in his wife's chattels real may be called an 
interest in his wife's right, with a power of alienation during 
coverture ; and an interest in possession, since such chattels 
are already in possession, but lying in action.^ As the hus- 
band is entitled to administer in his wife's right when she is 
executrix or administratrix, he may release or assign terms 
for years or other chattels real vested in her as such.^ But if 
he be entitled to a term of years in his wife's right as ex- 
ecutrix or administratrix, and have the reversion in fee in 
himself, the term \\\\l not be merged ; for, to constitute a 
merger, both the term and the freehold should vest in a per- 
son in one and the same right.^ 

An exception to the husband's right by survivorship to his 
wife's chattels real occurs in case of joint tenancy. If a single 
woman be joint tenant with another, then marries and dies, 
the other joint tenant takes to the exclusion of her husband 
surviving her ; for the husband's title is the newer and 
inferior one.^ 

When the husband succeeds to his wife's chattels real upon 
surviving her, or appropriates it during coverture, he takes it 
subject to all the equities which would have attached against 
her. In other words, being not a purchaser for a valuable 

1 Caterpt v. Paschall, 3 P. Wms. 5 Co. Litt. 338?-; 1 Bright Hus. & 
200. But see note to 1 P. Wms. Wife, and cases cited. 

880. 6 Co. Litt. 185 h. Wliere, during 

2 Merriwoatlier v. Brooker, .5 Litt. coverture, a lease for 3'cars is granted 
256 ; Pascliall v. Tliurston, 2 Bro. P. C. to tlie wife, ailverse possession, vvliich 
10. conimences during coverture, may be 

3 Mitford V. Mitford, 9 Ves. 98. treated as adverse eitlier to tlie wife or 
* Arnold r. Bidwond, Cro. , Lac. 318; to tlie hiisliand. Uoe v. Wilkins, 5 

Thrustout 1-. Coppin, W. Bl. 801. Kev. & M. 435. 

134 



CHAP. VI.] wife's chattels REAL, &C. § 88 

consideration, he can claim no greater interest than she had. 
Thus, where the wife's chattel interest is subject to the pay- 
ment of an annuity, the husband must continue to make 
payment so long as the mcumbrance lasts. And though he 
may not in all cases be bound on her covenant to make new 
leases, yet, if he does so, the equity of the annuitant will 
attach upon them successively.^ 

§ 88. Wife's Chattels Real ; Leases, &c. ; Subject continued. 
— The law enables the husband during coverture to defeat 
his wife's interest by survivorship by an absolute alienation 
or disposition of the whole term, either with or without con- 
sideration.^ And the same rule applies to the wife's trust 
terms as to her legal terins.^ In order to make it effectual, 
the right of the party in whose favor the disposition is made 
must commence in interest during the life of the husband ; 
but it is not necessary that it should commence in posses- 
sion during that period. Thus the husband, though he 
cannot bequeath these chattels by will, as against the wife's 
right by survivorship, may grant an underlease for a term 
not to commence until after his death , and this act will 
divest the right of the wife under the original lease so far 
as the underlease is prejudicial to such right.^ Nor need 
his disposition cover the whole chattel, since the disposition 
necessarily operates pro tanto^ Nor need it be absolute, 
since a conditional disposition is good if the condition sub- 
sequently takes effect.^ And the law enables the husband 
to dispose not only of the wife's interest in possession, 
but also of her possibility or contingent interest in a term, 
unless where the contingency is of such a nature that it 
cannot happen during his life.'^ A distinction is, however, 

i Moody V. Matthews, 7 Ves. 183 ; Turner's Case, 1 Ch. Ca. 307 ; Packer 

Rowe V. Ciiichester, Amb. 719. On the v. Windham, Prec. in Ch. 412. 
question of contribution by annuitants, * Grute ?'. Locroft, Cro. Eliz. 287 ; 

see Winslowe v. Tighe, 2 Ball & B. 201 ; Bell Hus. & Wife, 104, 105. 
Hubbs V. Rath, 2 il>. 553. 5 Sym's Case, Cro. Eliz. 33 ; Loft- 

2 1 Bright Hus. & AVife, 98; Grute ris's Case, ih. 276; Riley v. Riley, 4 C. 

V. Locroft, Cro. Eliz. 287 ; Jackson v. E. Green, 220. 
McConnell, 19 Wend. 175. 6 Co. Litt. 46 6. But see 4 Vin. Abr. 

8 Tudor V. Samyne, 2 Vern. 270 (in- 50, pi. 14. 
correctly reported, according to note, 1 ^ Doe d. Shaw v. Steward, 1 Ad. & 

Bright kus. & Wife, 99) ; Sir Edward El. 300; 1 Bright Hus. & Wife, 100. 

135 



§ 88 THE DOMESTIC RELATIONS. [PART n. 

made between cases where the disposition is intended of the 
whole or of part of the property, and where it is intended as 
a collateral grant of something out of it. In the latter case 
the transaction will not bind the wife ; for if she survive her 
husband, her right being paramount, and her interest in the 
chattel not having been displaced, she will be entitled to it 
absolutely free from such incumbrance.^ 

The husband may b}^ other acts than express alienation 
divest his wife's title, and defeat her rights by survivorship 
in her chattels real. Thus, if the husband, holding a term in 
right of his wife, grant a lease of the lands covered by the 
term, for the lives of himself and his wife, the wife's term 
will thereby merge, and her right in it be defeated.^ Or if, 
while in possession, under a lease to himself and the wife, the 
husband should accept from the lessor a feoffment of the 
lands leased, the term would be extinguished and the wife's 
right along with it, for the livery would amount to a sur- 
render of the term.2 

On the other hand, there are acts by the husband, which, 
although they amount to the exercise of an act of ownership, 
yet, as they do not pass the title, will not defeat the wife's 
right by survivorship. An instance of the latter is that of 
the husband's mortgage of his wife's chattels real ; or, what 
is the same thing in equity, a covenant to mortgage. This is 
in reality a disposition as security, and until breach of con- 
dition tlie mortsfagee has no further title. But, in order to 
protect the mortgagee's rights, equity treats the mortgage or 
covenant as good against the wife to the extent of the money 
borrowed ; that once paid, tlie chattels will continue hers.* 
After breach of condition, the mortgagee's estate becomes 
absolute ; or, at least, he can make it so by foreclosure ; and 
the alienation of the term being then completed at law, the 
wife's legal right by survivorship is defeated ; subject, how- 

And see Donne v. Hart, 2 Iluss. & My. 912. And see Lawes v. Lumpkin, 18 

360. Md. 334. 

1 Co. Litt. 184 6; 1 Bright Hus. & * Bates v. Dandy, 2 Atk. 207; Bell 
Wife, 103. Hus. & Wife, 107 ; 1 Bright Hus. & 

2 2 Roll. Abr. 495, pi. 50. Wife, 106. 

3 Downing v. Seymour, Cro. Eliz. 

136 



CHAP. VI.] wife's real ESTATE, ETC. 



§ 89 



ever, to the equity of redemption, where the hushcand has not 
otherwise disposed of that likewise.^ So, too, transactions, 
not constituting mortgages in the ordinary sense of the term, 
may yet be so construed in equity where such was their sub- 
stantial purport. And while the intention of the husband to 
work a more complete appropriation will be justly regarded 
by the court, the mere circumstance of a proviso in the con- 
vej'ance for redemption, pointing to a mode of reconveyance 
not in conformity with the original title, will not, it seems, 
debar the wife from asserting her rights by survivorship.^ 

§ 89. Wife's Real Estate ; Husband's Interest. — Now, as to 
the effect of coverture on the wife's real estate. By mar- 
riage, the husband becomes entitled to the usufruct of all 
real estate owned by the wife at the time of her marriage, 
and of all such as may come to her during coverture. He 
is entitled to the rents and profits during coverture. His es- 
tate is therefore a freehold. But it will depend upon the 
birth of a child alive during coverture, whether his estate 
shall last for a longer term than the j(jint lives of himself and 



1 See Pitt V. Pitt, T. & R. 180; 1 
Prest. on Estates, 345. 

2 Clark V. Burgh, Jur. 679. And 
see In re Betton's Trust Estates, L. R. 
12 Eq. 553 ; Pigott v. Pigott, L. 11. 4 
Eq. 549. As to tl:e wife's equity for a 
settlement, however, it is held that 
where a husband mortgages the legal 
interest in a term of years belonging to 
him In right of his wife, no such equity 
arises on a claim to foreclose this mort- 
gage against the husband and wife as 
defendants. Hill v. Edmonds, 15 E. L. 
& Eq. 280. 

Among the miscellaneous acts of 
the husband, whicii will defeat the 
wife's survivorship to her chattels real, 
are the following : A disseverance of 
his wife's joint tenancy during cover- 
ture. Co. Litt. 185 b ; Plow. Com. 418. 
An award of the term to the husband, 
if carried into effect. Oglander v. Bas- 
ton, 1 Vern. 396 ; note of Jacob to 1 
Roper Hus. &, Wife, 185, and cases com- 
mented upon. The husband's criminal 



acts ; such as attainder. Co. Inst. 351 a; 
4 Bl. Com. 387; Steed v. Cragh, 9 
Mod. 43. So, too, his alienage. 2 Bl. 
Com. 421 ; 4 Bl. Com. 387. See post 
§ 89. Lord Coke considered that 
ejectment recovered by the husband in 
his own name would work appropri- 
ation ; but he was probably in error. 
See Jacob's note to 1 Roper Hus. & 
Wife, 185; Co. Litt. 46 6; 4 Vin. Abr. 
50, pi. 18. Waste operates as a for- 
feiture of a term. Co. Litt. .351. And 
finally, the husband's creditors may 
sell the wife's chattels real on execu- 
tion, and by their own act determine 
her interest altogether. Miles v. Wil- 
liams, 1 P. Wms. 258 ; Co. Litt. 351. 
But it is held that the wife's survivor- 
ship is not defeated by such acts of her 
husband as erecting buildings on the 
leasehold premises ; and making a 
mortgage, sale, or lease of part bars 
the wife only so far. Riley v, Riley, 4 
C. E. Green, 229. 

137 



§ 89 THE DOMESTIC RELATIONS. [PART II, 

wife, or not ; that is to say, whether he acquires the right of 
curtesy initiate, to be consummaled on the death of the wife 
leaving him surviving.^ In the event of such birth, his interest 
hists for his own life, whether his wife dies before him or 
not. If there be no child born alive, his interest lasts only so 
long as his wife lives. In either ease, he has not an absolute 
interest, but only an estate for life, and his right is that of 
beneficial enjoyment. When his estate has expired, the real 
estate vests absolutely in the wife or her heirs, and the hus- 
band's relatives have no further concern with it.^ 

While, therefore, the husband lias the benefieial enjoyment 
of his wife's freehold property during coverture, at the com- 
mon law, tlie ownership remains in the wife. Herein, her 
right becomes suspended, not extinguished, by her marriage. 
The inheritance is in her and her heirs. 

Consequently, the husband may collect and dispose of the 
rents. He may also sue in his own name for injury to the 
profits of his wife's real estate ; as where growing crops are 
destroyed or carried off; for this relates to his usufructuary 
interest. But for injuries to the inheritance, such as trespass, 
by cutting trees, burning fences, and pulling down houses, 
and generally in actions for waste, the wife must be joined ; 
and if the husband dies before recovering damages, the right 
of action survives to the wife. And if the wife survives her 
husband, she may commence such suits without joining his 
personal representatives.^ But the husband cannot prosecute 
such an action alone after his wife's death during the pen- 
dency of the suit.* Husband and wife are properly joined as 
plaintiffs in a bill to protect and secure the permanent rights 
and interests to her real estate.^ 

1 See post, Dissolvation by Death, as after, to his wife's separate real es- 

to Curtesy. tate. 

^ Co. Litt. .351 a ; 2 Kent Com. 130 ; 3 2 Kent Com, 131 ; Wcller v. Baker, 

1 Bac. Abr. 286 ; .Junction Railroad Co. 2 Wils. 423, 424; Beaver v. Lane, 2 

V. Harris, 9 Ind. 184 ; Chirke's Appeal, Mod. 217 ; Bae. Abr. tit. Baron & Feme, 

79 Penn. St. 376; Rogers v. Brooks, 30 K. ; 1 Chit. Pi. (Gth Am. ed.) 85; 1 Bl. 

Ark. 612. The husband's rights and Com. 362; Illinois, &c. R. R. Co. v. 

liabilities attach to property bought by Grable, 46 III. 445 ; Thacher v. Phin- 

himself and held in his name as trustee ney, 7 Allen, 146. 
for his wife. Pharis v. Leachman, 20 * Buck v. Goodrich, .33 Conn. 37. 

Ala. 662. But not, as will be seen here- ^ Wyatt v. Simpson, 8 W. Va. 394. 

138 



CHAP. VI.] wife's EEAL ESTATE, ETC. § 89 

Besides the rents and profits during coverture, the husband, 
if the survivor, is entitled to all arrears accrued up to the 
time of his wife's death. Such property is not treated like 
the wife's choses in action, not reduced to possession. Accord- 
ingly he may maintain suit after coverture to recover all rents 
and profits which had accrued while coverture lasted. And 
where the wife joins her husband in a lease, the covenant for 
payment of rent is for the husband's benefit alone while the 
usufruct continues. 1 But it would appear to be otherwise 
where rent is reserved to husband and wife, and her heirs and 
assigns.^ In all cases, emblements or growing crops go to the 
husband or liis representatives at the termination of his estate.^ 
This rule was extended at the common law to cases of divorce 
causa precontractus^ But it does not apply to divorce for 
the husband's misconduct under modern statutes.^ The hus- 
band's lease in right of his wife operates so far in the tenant's 
favor as to entitle the latter to emblements.*' The rule is the 
same whether the husband be tenant by curtesy or not. No 
action, therefore, can be maintained by the wife in such cases. 
Where, pending an action of ejectment brought by husband 
and wife to recover possession of land to which they were en- 
titled in right of the wife, the husband dies, the right to the 
rent current and in arrear, and also to damages for waste, 
survives to the wife ; and as to rents accruing after the wife 
dies also, tliese go to her heirs and devisees.' 

The husband's interest in his wife's real estate is liable for 
his debts, and may be taken on execution against him. But 

It is held that the liusband can sue in- Pick. 463; Beaver v. Lane, 2 Mod. 217; 

truders alone for digging up the soil Shaw v. Partridge, 17 Vt. 626 ; Edring- 

and carrying it away. Tallmadge ton y. Harper, 3 J J. Marsh. 360 ; Bai- 

V. Grannis, 20 Conn. 296. Or gener- ley v. Duncan, 4 Monr. 260. 
ally tor forcibly entering the premi- ^ Reeve Dom. Rel. 28, and cases 

ses. Alexander v. Hard, 64 N. Y. cited; Weems ?'. Bryan, 21 Ala. 302; 

228. Spencer i'. Lewis, 1 Houst. 223. 

1 1 Washh. Real Prop. 44; Co. Litt. * Orland's Case, 5 Coke, 116rt. 
35Wj; Jones i\ Patterson, 11 Barb. 5 See Vincent v. Parker, 7 Paige. 
572; Matthews v. Copeland, 79 N. C. 65, per Chancellor Walworth ; Jenney 
493. V. Gray, 5 Ohio St. 45. 

2 Hill V. Sounders, 4 B. & C. 529. 6 Rownev'= Case, 2 Vern. 322; 
The wife need not be joined in such Gould ?•. Webster, 1 Vt. 409. 

8uits for rent. Clapp v. Stoughtou, 10 ' King i Little, 77 N. C. 138. 

139 



§89 



THE DOMESTIC RELATIONS. 



[part II. 



nothing more than the husband's usufruct is thereby affected ; 
nor can the attachment or sale affect the wife's ultimate 
title.^ 

A husband's life estate may be barred by a statute of limi- 
tations like other freehold interests.^ At the common law, 
attainder of treason or other felony worked a forfeiture or 
escheat of real estate to the government. And corruption of 
blood affected the inheritance in such cases. Bat as regarded 
the wife's real estate, nothing more could be taken than the 
husband's life interest: the freehold continued in the wife as 
before. For the same reason, where tlie wife was at common 
law attainted of felony, the lord might enter to the lands by 
escheat, and eject the husband whenever the crown had had 
its prerogative forfeiture of a year and a day's waste.^ The 
common law of attainder is of no force in this country so far 



1 2 Kent Com. 131 ; Babb v. Perley 
1 Me. 6; Mattocks v. Stearns, 9 Vt. 
326 ; Perkins v. Cottrell, 15 Barb. 446 ; 
Brown v. Gale, 5 N. H. 416; Canby v. 
Porter, 12 Ohio, 79 ; Williams v. Mor- 
gan, 1 Litt. 168 ; Nichols v. O'Neill, 2 
Stockt. 88; Montgomery v. Tate, 12 
Ind. 615; Lucas v. Rickericli, 1 Lea, 
726; Sale v. Saunders, 24 Miss. 24; 
Cheek v. Waldrum, 25 Ala. 152 ; 
Schneider v. Starke, 20 Mo. 269. But 
see Jackson y. Ifeuffern, 19 Wend. 175. 
And see Rice v. Hoffman, 35 Md. 344, 
as to the liability e.xtending to the 
husband's interest as tenant by the 
curtesy. The rule in Massachusetts 
is to allow the purchaser to take the 
rents and profits for a definite period, 
or the whole life estate, at an appraisal 
of the value founded on a proper esti- 
mate of the probability of human life. 
But where the whole life estate is of 
more value than the amount of the 
execution, the more proper, and per- 
haps the only mode, is the former. 
Litclifield V. Cadworth, 15 Pick. 23. It 
has been iield that the husband, under 
a bona Jide deed of separation, without 
trustees, executed before judgment, 
may relinquish to his wife all interest 
in her lands, and thus avoid the de- 

140 



mands of his creditors upon the prop- 
erty, even though an annuity be 
reserved to himself. Bonslaugh v. 
Bonslaugh, 17 S. & R. 361. But see 
Bowyer's Appeal, 21 Penn. St. 210. 
And it is certain that the sheriff's deed 
cannot convey a greater interest than 
the defendant has at the time of attach- 
ment or of levy and sale. Williams v. 
Amory, 14 Mass. 20 ; Johnson i-. Payne, 
1 Hill, 111; Rabb v. Aiken, 2 McC. 
Cli. 119. Therefore, wliere a statute 
allows the husband a distributive share 
in his wife's lands in the event of his 
survivorship, no such interest passes to 
thepurchaserof lands sold on execution 
for his debts during her life. Starke 
V. Harrison, 5 Rich. 7. Since the hus- 
band's life interest is liable for his own 
debts, it is liable for the debts of the 
wife (hail sola. Moore v. Ricliardson, 37 
Me. 438. And it is held in Penn.^ylvania 
that where a husband has conveyed his 
life estate in fraud of his creditors, they 
may levy upon the growing crops. 
Stehman v. Huber, 21 Penn. St. 260. 

2 Kibbie v. Williams, 58 111. 30. 

3 Bell Hus. & Wife, 149, 150; 2 Bl. 
Com. 253, 254. As to the wife's right 
of dower in such cases, see 2 Bl. Cora. 
253, and notes by Chitty and others. 



CHAP. VI.] wife's real ESTATE, ETC. § 90 

as forfeiture and corruption of blood is concerned ; but it 
probably applies to the husband's life interest in his wife's 
lands.^ Where tlie husband was an alien he could not ac- 
quire an interest in his wife's real estate at the common 
law.2 But the disability is now removed in great measure by 
statute.^ 

At common law, too, the marital rights of the husband do 
not attach to realty in which the wife has only a remainder 
or reversion expectant upon the termination of a precedent 
life estate.^ Mere contingencies of the wife, which cannot 
happen before the death of either spouse, cannot be attached, 
therefore, by creditors of the husband ; ^ nor landed expec- 
tancies in general while continuing expectant.^ 

§ 90. "Wife's Real Estate ; Husband's Right to convey or lease. 
— The husl)and alone has power at common law to bind or 
alienate the wife's lands during coverture. This right lasts, 
at any rate, during their joint lives (provided the parties are 
not in the mean time divorced) ; and if the husband becomes 
a tenant by curtesy, it lasts during his whole life. But the 
husband's power is commensurate with his estate. He can- 
not incumber the property beyond the period of his life 
interest, nor prevent his wife, if she survives him, or her 
heirs after his death, from enjoying the property free from all 
incumbrances which he may have created.'^ Undei^the ancient 
law of tenures the husband could transfer the property so as 
to vest it in the grantee, subject to the wife's entry by writ 
eui in vita; for his act amounted to a discontinuance. Stat- 
ute 32 Hen. VIH. c. 28, was remedial in its effect, so far as 
to give the wife her writ of entry, notwithstanding her hus- 
band's conveyance. Copyhold lands followed a different rule, 
not being considered within the letter or the equity of this 

1 See Const. U. S. Art. III. § 3. 8 Vict. c. 66, removes disabilities as to 

2 Waslil). Real Prop. 48, and cases dower for tlie most part. 

cited; P>ell ILis. & Wife, 151; Co. * Baker r. Floiirnoy, 58 Ala. 650. 

Litt. 31/;,- Menvill's Case, 13 Co, ^ Hornsby w. Lee, 2 Madd. Ch. 16 ; 

293; 2 Bl. Cora. 293; 2 Kent Com. Allen v. Scurry, 1 Yerg. 36; Sale v. 

39-75. Saunders, 24 Miss. 24. 

8 See note to 1 Waslib. Real Prop 6 Osborne v. Edwards, 3 Stockt. 73; 

49, giving statutory cbanges. And see Baker v. Flournoy, 58 Ala. 650. 

Bell Has. & Wife, 151, 241, Stat. 7 & ^ 2 Kent Com.' 133. 

141 



§ 90 THE DOMESTIC RELATIONS. [PART II. 

statute. But by the more recent statutes of 3 & 4 Will. IV. 
c. 27 and c. 74, and 8 & 9 Vict. c. 106, fines and recoveries 
have been abolished and feoffments deprived of their tortious 
operation ; and it is enacted that no discontinuance or war- 
ranty made after the 31st day of December, 1833, shall defeat 
any right of entry or action for the recovery of land. At the 
present day there is, therefore, no mode of conveyance in the 
English law b}^ which the husband can convey more than his 
own estate in his wife's lands. ^ 

These latter statutes are not, per se, of force in this coun- 
try, for they were passed in England after the colonization 
of America. But the same result has been very generally 
reached in this country through a different process. In 
Massachusetts, the statute of 32 Hen. VIII. is still in force 
as a modification and amendment to the common law.^ In 
other States, ejectment or other summary process may be 
resorted to.^ The universal doctrine, whatever may be the 
form of remedy, prevails, that the husband can do no act nor 
make any default to prejudice his wife's inheritance. And 
while his own alienation passes his life estate, it can do no 
more; and the wife, notwithstanding, may. enter after his 
death and hold possession.* 

So far as the effect of the husband's lease was concerned, 
the statute 32 Hen. VIII. c. 28, changed the old common 
law. By this statute, husband and wife are permitted to 
make a joint lease of the wife's real estate for a term not 
exceeding three lives or twenty-one years. There were, 
however, some restrictions placed upon the operation of this 
statute. Thus, it was further declared that things which lie 
in grant, such as franchises, should be excepted ; though 
tithes followed the general principle. And the old lease 
must have been surrendered either in writing or by opera- 
tion of law within one year from making the new lease. 

1 1 Bright Hus. & Wife, 162-168, N. Y. Rev. Stats. 4tli ed. vol. 2, p. 303; 
and authorities cited ; Bell Hus. & 2 Kent Com. 133, n. 

Wife, 195; Robertson v. Norris, 11 * 2 Kent Com. 133, n.; 1 Washb. 

Q. B. 916. Real Prop. 279 ; Butterfield v. Beall, 

2 Bruce v. Wood, 1 Met. 542. 3 Ind. 203; HufE v. Price, 50 Mo. 228; 

3 Miller v. Shackleford, 4 Dana, 264; Jones v. Carter, 73 N. C. 148. 

142 



CHAP. VI.] wife's EEAL ESTATE, ETC. § 90 

Property in possession might be leased under the statute, 
but not property in reversion. The lease would not exempt 
the tenant from responsibility for waste. And the rent 
reserved should not be less than the average rent of the 
preceding twenty years. This statute has been strictly con- 
strued both in the common-law and equity courts of Eng- 
land. i 

But the husband's lease of the wife's lands, whether alone 
or jointly with her, may be good at the common law, though 
not made in compliance with the statute. In such case the 
wife may affirm or disaffirm the lease at the expiration of 
coverture. And the same right may be exercised by her 
issue, or by others claiming under her or in privity with her. 
So, too, where she marries again after her husband's death, 
her second husband has the privilege of election in her stead. 
But one who claims by paramount title to the wife, as, for 
instance, a joint tenant surviving her, cannot exercise this 
right.^ 

Some acts of the wife, on being released from coverture, 
will amount to an affirmance of her husband's informal lease. 
Thus acceptance of rent from the tenant, after her husband's 
death, will confirm the lease.^ But parol leases of the wife's 
real estate are affected by the statute of frauds ; and not 
even acceptance of rent can bind the Avife surviving : the 
lease will be treated as utterly void at the husband's death, 
and not voidable only.* Whether acceptance of rent by the 
wife after the husband's death would confirm a lease in 
writing, made by the husband alone, is a question on which 
the authorities are not agreed.^ A distinction, however, is 
sometimes made between leases for life and leases for terms 

1 Bell Hus. & Wife, 170-181 ; 1 ^ Doe v. Weller, 7 T. R. 478. 
Bright Hus. & Wife, 103-219 ; Dar- < Bell Hus. & Wife, 178. And see 
lington V. Pulteny, Cowp. 267. Winstell r. Helil, 6 Bush, 58. 

2 Bell Hus. & Wife, 175, 177; Jef- & Bell Hus. & Wife, 177, and cases 
trey V. Guy, Yelv. 78; Smalman v. cited ; Preamble to Stat. 32 Hen. VIII. 
Agborow, Cro. Jac. 417; Anon., 2 c. 28 ; Cro. Jac. 332 ; Bac. Abr. Leases. 
Dyer, 159. See also Toler v. Slater, C. 1. See 2 Saund. 180, n. 10; Bro. 
L. R. 3 Q. B. 42, where the lessee Abr. Acceptance, 1 ; Vaugh. 40 ; Good- 
was held bound on his covenant to right r. Straphan, 1 Cowp. 201 ; Hilly, 
pay rent. Saunders, 2 Bing. 112. 

143 



§ 92 THE DOMESTIC KELATIOXS. [PART U. 

of years, when made by the husband alone. The former, it 
is said, being freehold estates and commencing by livery of 
seisin, could only be avoided by entry ; while the latter 
became void absolutely on the husband's death. But accord- 
ing to the better authority both kinds of leases follow the 
same principle, and are not void but voidable at the hus- 
band's death. ^ 

§ 91. Wife's Real Estate ; Husband's Mortgage ; "Waste. — 
The husband's mortgage of his wife's real estate is effectual 
to the same extent as his absolute conveyance ; that is to say, 
it will operate upon his life estate or the joint life estate of 
himself and his wife, as the case may be, and no further. 
And his lease of the wife's lands for a term of jears, for the 
purpose of creating an incumbrance in the nature of a mort- 
gage, is treated in equity as a mortgage ; and the wife's 
acceptance of rent after his death cannot make such a lease 
other than void on the termination of his life estate.^ 

§ 92. Wife's Real Estate ; Husband's Dissent to Purchase, &c. ; 
Conversion. — The husband may dissent from a purchase, gift, 
or devise of real estate to his wife during coveiture ; since 
otherwise he might be made a life tenant to his own disad- 
vantage. But by such dissent he cannot and ought not to 
defeat her ultimate title as heir.^ Nor on j^rinciple should he 
be permitted to dissent to any purchase, gift, or devise to the 
wife's separate use, by the terms of which his own interest as 
life tenant is legally excluded. Subject to the husband's 
dissent and the wife's disagreement after her coverture ends, 
a conveyance to the wife in fee is always good.* 

If the real estate of the wife be converted into personalty 

1 Bell Hus. & Wife, 177, 178, and Harris, 15 Wend. 615; Railroad Co. v. 
cases cited; contra, notes to Kent Harris, 9 Ind. 184; Kay r. Wliittaker, 
Com. 133, and authorities referred to, 44 N. Y. 565. As to tlie wife's remedy 
including note of Serjeant Williams to for waste, see Sclioul. Hus. & Wife, 
Wotton V. Ilcle, 2 Saund. 180. § 171 ; 1 Waslib. Real Prop. 118-124. 

2 Bell Hus. & Wife, 193,194; Good- ^ Co. Litt. 3a; 1 Dane Abr. 388; 4 
right V. Straphan, 1 Cowp. 201 ; Dry- ib. 397 ; 1 Washb. Real Prop. 280. 
butter I'. Bartholomews, 2 P. Wms. 127. * Co. Litt. 3a, 3oQh;2 Bl. Com. 
The husband's mortgage, in this coun- 292,293; 2 Kent Com. 150. The wife's 
try also, passes only his life estate, privilege of disagreement to purchase 
under the like circumstances. Miller extended to her heirs. Ib. 

V. Shackleford, 3 Dana, 291 ; Barber v. 

144 



CHAP. VI.] wife's real ESTATE, ETC. 



§93 



during her life by a voluntary act of the parties, the proceeds 
become personal estate, and the husband nia}^ reduce into his 
own possession or otherwise take the proceeds. This princi- 
ple is known as conversion.^ But where conversion takes 
place by act of law, independently of husband and wife, the 
rule is not so clear.^ On the other hand, the rule is an- 
nounced that where a married woman is entitled to a legacy, 
and land is given her in lieu thereof, the husband having 
effected no prior reduction of the legacy, it is to be held as 
hers and for her sole benefit. A case of this sort was lately 
decided in Pennsylvania.^ And it is held that land pui'chased 
b}^ a married woman with the proceeds of a legacy which the 
husband has declined to reduce into possession is not liable 
for the husband's debts.* 

§ 93. Wife's Real Estate ; Husband's Agreement to Convey. 
— By the old law of England it appears that, if a husband 
agreed to convey real estate belonging to his wife, he might 



1 Hamlin v. Jones, 20 Wis. 536; 
Watson V. Robertson, 4 Busli, 37 ; Till- 
man V. Tillman, 50 Mo. 40 ; Sabel v. 
Slingluff, -32 Md. 132 ; Humphries v. 
Harrison, 30 Ark. 79 ; Schoul. Hus. & 
Wife, § 156. 

2 Graham v. Dickinson, 3 Barb. Ch. 
170. In this case, Flanagan v. Flana- 
gan, 1 Bro. C. C. 500, appears to have 
been disapproved. In New York, how- 
ever, it is held that where the real 
estate of a married woman has been 
converted into personalty by operation 
of law during her lifetime, it will be 
disposed of by a court of equity, after 
her death, in the same manner as if she 
had herself converted it into personal 
property previous to her death. Gra- 
ham V. Dickinson, 3 Barb. Ch. 170. 
So, too, in some States, conversion of 
real estate, imder partition proceed- 
ings, into personalty has been held 
complete where equity decreed parti- 
tion, and the wife died after a final 
confirmation of the sale in court, all 
terms of sale having beei% complied 
with, and all formalities duly observed. 
Jones V. Plummer, 20 Md. 416 ; Cow- 

10 



den V. Pitts, 2 Baxt. 59. Where an ad- 
ministrator's sale of the wife's land is 
irregular, the husband cannot, apart 
from the wife, confirm it, even though 
he has received the purchase-money. 
Kempe v. Pintard, 32 Miss. 324. See 
also Ellsworth y. Hinds. 5 Wis. 613; 
Osborne v. Edwards, 3 Stockt. 73. But 
a husband may demand and reduce 
into possession his wife's legacy, even 
though it be made payable, by the 
terms of a will, from proceeds of the sale 
of the testator's real estate. Thomas 
V. Wood, 1 Md. Ch. 296. Conversion 
takes place where husband and wife 
convey to trustees to sell and dispose 
for payment of debts, balance to be 
paid them as they shall direct or ap- 
point. Siter V. McClanachan, 2 Gratt. 
80. And see post, c. 14. 

3 Davis V. Davis, 46 Penn. St. 342. 
But see Davis's Appeal, 60 Penn. St. 
118. 

4 Coffin V. Morrill, 2 Fost. 352. And 
see Sims v. Spalding, 2 Duv. 121. See 
further incidents, Schoul. Hus. & Wife, 
§172. 

145 



§ 94 THE DOMESTIC RELATIONS. [PART U. 

be compelled to execute the contract by getting her to lev}'- 
a fine.i This rule no longer holds good in that country .^ 
Even where the agreement has been made, not by the hus- 
band, but by the wife herself before her marriage, the agree- 
ment cannot now be enforced against the wife.^ But it is 
nevertheless binding upon the husband ; though, where the 
purchaser has not been misled, the husband cannot be made 
to convey his partial interest and submit to an abatement of 
the price, because of the wife's refusal to convey her real 
estate which he and she had promised to convey.^ 

§ 94, Wife's Agreement to Convey ; Her Conveyance, Mort- 
gage, &c., under Statutes. — An agreement by a feme covert for 
the sale of her real estate, the same not being her separate 
property, cannot be enforced at law or in equity against her.^ 
And Sugden considers it doubtful whether a married woman, 
having a power of appointment, can thus bind herself.^ But 
modern statutes, which permit the wife to convey with the 
observance of certain formalities, often permit her generally 
to contract, to convey, and to incumber her lands. 

Under the modern statute of 3 & 4 Will. IV. c. 74, which 
took effect in England from the end of the year 1833, married 
women are permitted to alienate or incumber their real estate 
by conveyances executed with their husl)ands pursuant to its 
provisions. This important law, with its later modifications, 
unfettered property which had long been fast bound." The 
statute requires the concurrence of the husband in such con- 
veyances ; also that the wife shall make an acknowledgment 
before certain judicial officers designated by the act, apart 

1 2 BriEfht Hus. & Wife, 47; Macq. Ves. 474; Castle v. Wilkinson, L. R. 
Hus. & Wife, 32. 5 Ch. 534. 

2 Frederick v. Coxwell, 3 Y. & J. ^ Macq. Hus. & Wife, 32 : Emery v. 
514; Emery v. Ware, 8 Ves. 505; 2 Ware, 5 Ves. 846; Sug. V. & P. 11th 
Story Eq. Juris. §§ 49-53 ; Thayer v. ed. 230. 

Gould, 1 Atk. 617; 1 Amb. 495. But 6 s„g. v. & P. 11th ed. 231. She 

see Davis v. Jones, 4 B & P. 2G7. certainly cannot in some States. Ken- 

2 Per Lord Ch. Cottenham, Jordan nedy v. Ten Broeck, 11 Bush, 211. But 

y. Jones, 2 Phill. 170; Rowley W.Adams, the wife cannot use her privilege in 

6 PI L. & Eq. 124. this respect unfairly, where the pur- 

* Tothill, 100 ; Hall v. Hardy, 3 P. chaser ha^ become bound on his part. 

Wms. 187 ; Morris v. Stephenson, 7 See Cross v. Noble, 67 Penn. St. 74. 



7 See 8 & 9 Vict. c. 100. 



146 



CHAP. VI.] wife's real ESTATE, ETC. § 94 

from her husband, to the effect that her own consent is freely 
and voluntarily given. ^ 

In this country the custom of a wife's joining her husband 
in a deed of conveyance of her lands has prevailed from a 
very early period. In most, if not all, of the States, there 
are statutes existing as to the mode of execution, which con- 
template the joinder of husband and wife in the conveyance, 
and an acknowledgment by one or both of the parties.^ 
Some of the States require a separate acknowledgment of the 
wife apart from her husband, and even a privy examination 
by the magistrate, so as to make sure that she is acquainted 
with the contents of the deed, and acts freely and under- 
standingly; but in this and other respects the laws are not 
uniform. There is less formality in general than under the 
English statute. Thus, then, does the wife pass title to her 
real estate. 

And since, in the tenure of lands and the mode of convey- 
ance, the law in this country has always varied considerably 
from that of England, the rights of married women in other 
respects may be different.'^ But following the English doc- 

1 See Macq. ITus. & Wife, 28-32 ; ib. Page v. Page, 6 Cush. 196 ; 2 Kent 
Appendix, 1-47, where the provisions Com. 151-155, and notes, showing cus- 
of this act, tlie rules of court made in torn in different States ; Albany Fire 
pursuance, and leading decisions on the Ins. Co. ?;. Bay, 4 Comst. 9 ; Ford v. 
construction of different sections are Teal, 7 Bush, 156 ; Mount v. Kester- 
fuUy given. And see In re DowJing, son, 6 Cold. 452; Tourville i'. Pierson, 
18 C. B. N. s. 233. We have not thought 39 111. 446 ; Deery v. Cray, 5 Wall. 795 ; 
it worth while to embody them in this Alabama, &c. Ins. Co. v. Boykin, 38 
work, as they have only a local appli- Ala. 510 ; Lindley r. Smith, 46 111. 523; 
cation. There are many cases con- Tnbbs r. Gatewood, 26 Ark. 128. The 
stantly arising in the English courts as privy examination of a wife for ascer- 
to the interpretation of this statute, taining that she executes the deed 
with its amendments ; but they seem freely and without undue influence or 
chiefly confined to the effect of the compulsion of lier husband is a feature 
wife's acknowledgment. Previous to of the legislation in many States ; and 
the statute of 3 & 4 Will. IV. c. 74, the the validity of her conveyance often 
wife could convey her interest only by turns upon a compliance with such a 
levying a fine, which, as well as suffer- requirement. Schoul. Hus. & Wife, 
ing recoveries, is abolished by that stat- § 174. 

nte. 1 Washb. Peal. Prop. 280 ; 1 ^ Thus it would seem that the joint 

Wms. Peal Prop. 88. assent of husband and wife in accept- 

2 1 Washb. Eeal Prop. 281, and cases ing a title should be as good as in 
cited; Davey r. Turner, 1 Dall. 15; granting one. 1 Washb. Real Prop. 
Jackson v. Gilchrist, 15 Johns. 109; 280. And in New Hampshire it is held 

147 



94 



THE DOMESTIC KELATIOXS. 



[part II. 



trine, the wife's executory agreement to convey real estate, 
whether expressed by bond or simple instrument, is in this 
country held void in the absence of enabling statutes, like 
her general contracts, though made with her husband's 
assent ; and specific performance cannot be enforced against 
her.^ So it has been held in Vermont that the wife cannot, 
either separately or jointly with her husband, execute a valid 
power of attorney to convey her lands.^ And a deed, in 
order to bind the wife's heirs, must have been delivered, as 
well as executed, during her lifetime.-^ Nor can her husband, 
after her decease, as against such heirs, confirm a conveyance 
which was fatally irregular on her part.* If her conveyance 
be void, a note given in part-payment of the price is neces- 
sarily without consideration.'^ And as she cannot bind her- 
self to convey, neither can she be bound by her agreement to 
purchase.^ Nor will the law coerce her into fulfilling her agree- 
ment by granting exemplary damages against her husband.^ 



that a deed to a feme covert, made with 
her own and her husband's assent, vests 
the title legally in lier. Gordon v. Hay- 
wood, 2 N. H. 402. See Leach v. Noyes, 
45 N. H. 364. ' In Pennsylvania, if land 
conveyed to her be incumbered, it 
passes to her subject to tliat incum- 
brance. Cowton V. Wickersham, 54 
Penn. St. 302. And in Vermont it has 
been held tliat a deed of gift to a wife 
during coverture, if accepted by her 
husband, is accepted by her, and that 
her refusal apart from him is of no con- 
sequence. Brackett v. Wait, 6 Vt. 411. 
1 2 Kent Com. 1G8 ; Butler v. Buck- 
ingham, 5 Day, 492; Dankel v. Hunt- 
er, 61 Penn. St. 382; Stidham v. Mat-, 
thews, 2D Ark. 650 ; Moseby v. Partee, 
5 Heisk. 26 ; Holmes v. Thorpe, 1 Halst. 
Ch. 415 ; Lane v. McKeen, 15 Me. 304. 
We make, of course, no reference here 
to the wife's separate propertij, or to her 
rights under what are known as the 
" married women's acts," to be consid- 
ered post. See Blake v. Blake, 7 Iowa, 
46. A contract to convey, made by 
husband and wife, may be good against 
tlie husband, though void as to the 
wife. StefEey v. Steffey, 19 Md. 5; 

148 



Johnston v. Jones, 12 B. Monr. 326. 
2 Kent Com. 168. See supra, § 60. 
Upon the strict assent of husband and 
wife, equity has sometimes decreed a 
sale under the wife's title bond. Mose- 
by V. Partee, 5 Heisk. 26. As to the 
wife's ratification of the husband's un- 
autliorized contract for the sale of her 
land, see Ladd v. Hildobrandt, 27 Wis. 
135. 

2 Sumner v. Conant, 10 Yt. 1 ; Gil- 
lespie V. Worford, 2 Cold. 632 ; Har- 
denburgh v. Lakin, 47 N. Y. 109. 

3 Thoenberger v. Zook, 34 Penn. 
St. 24. But see Ackert v. Pults, 7 
Barb. 386 ; Somers v. Pumphrey, 24 
Ind. 231. 

4 Dow V. Jewell, 1 Post. 470. 

5 Warner v. Crouch, 14 Allen, 163. 
^ Robinson v. Robinson, 11 Bush, 

174. But though coverture is a good 
defence to a suit for specific perform- 
ance, the wife will not be permitted to 
refuse a deferred payment of purcliase- 
money and at the same time retain the 
land. Staton r. New, 49 Miss. 307. 

7 Burk V. Serrill, 80 Penn. St. 413. 
In some States the separate convey- 
ance of a married woman, or her ex- 



CHAP. VI.] wife's real ESTATE, ETC. § 95 

So, too, in this country, a married woman may mortgage 
as well as alienate her real estate by joining her husband in 
the conveyance and making due acknowledgment ; and this, 
too, though no consideration pass to her thereby. ^ Where 
the wife joins her husband in a conveyance in the nature 
of a mortgage, she subjects her real estate to the risk of 
complete alienation by foreclosure for her husband's debt, 
or by sale under a power of sale thereby conferred. She 
is estopped by her own acts from denying the validit}' of the 
mortgage.''' She may covenant that scire facias may issue 
in default of payment.^ She may create a valid power in 
the mortgage to sell in default of payment.* And in gen- 
eral she may convey upon condition and prescribe the terms.^ 
But independently of an express statute permission, and as 
our statutes generally run, the wife's mortgage without her 
husband's joinder or assent is void.^ And so is her assign- 
ment of a mortgage." 

§ 95. Covenants in Wife's Statute Conveyance or Mortgage, 
&c. — The rights of the wife are nevertheless in all such cases 
of conveyance, absolutel}^ or for security, treated with great 

ecution jointly with her liusband, but ^ Eaton v. Nason, 47 Me. 132 ; Swan 

without observance of tlie full statute i'. Wiswail, 15 Pick. 128 ; Whiting v. 

formahties, is void. But in otliers such Stevens, 4 Conn. 44 ; Demarcst o. Wyn- 

irreguharities are not hekl fatal to tlie koop, 3 Joiins. Cli. 144 ; 2 Kent Cora. 

instrument, and she is furtliermore 167 ; Siter v. McClaiiachan, 2 Graft. 

bound on the usual principles, even 280; Schoul. Hus. & Wife, § 176; Am- 

though her deed be separate from that erican, &c. Ins. Co. v. Owen, 15 Gray, 

of her husband and executed at a dif- 491. 

ferent time. Tlie question in such ^ McCullough v. Wilson, 21 Penn. 

cases is mainly one of statute construe- St. 436. 

tion ; and as to formalities a distinction ^ Black v. Galway. 24 Penn. St. 18. 

may be taken between mere errors of ^2 Kent Com. 167 ; Vartie v. Un- 

description, or literal informalities of derwood, 18 Barb. 561; Barnes v. Ehr- 

execution or acknowledgment on the man, 74 111. 402. 

one hand, and, on the other, the dis- ^ Demarcst v. Wynkoop, 3 Johns. 

regard of some statutory requirement, Ch. 129; 2 Kent Com. 167. So, too, in 

so as to substantially violate pviblic England. Pybus v. Smith, 1 Ves. Jr. 

policy, such, for instance, as her sep- 189. 

arate acknowledgment, or her decla- ^ Weed Sewing Machine Co. v, 

ration before the magistrate that she Emerson, 115 Mass. 554; Bressler v. 

executed freely and understandingly Kent, 61 111. 426 ; Yager i\ Merkle, 26 

for the purpose speciiied. See Schoul. Minn. 429; Herdmann v. Pace, 85 111. 

Hus. & Wife, §§ 175, 176, where this 345. 

subject of statute conveyances by hus- ^ Moore v. Cornell, 68 Penn. St. 

band and wife is considered at length. 320. 

149 



§ 95 THE DOMESTIC RELATIONS. [PAET II. 

consideration in our courts.^ Wherever the wife joins her 
husband in a mortgage of her own property to secure his 
debts or tlie paymenc of money loaned to him, she is merely 
the surety of her husband, and is entitled to all the rights 
and privileges of a surety. Tliis rule is well settled.^ The 
property actually mortgaged by her, and not her propertj^ in 
general, is thus subjected to the payment of her husband's 
note ; and she cannot be held personally liable for any de- 
ficiency under the foreclosure sale.^ 

So, too, a wife is not bound by her warranty in a deed 
which she executes. Nor by any covenants contained therein. 
This is the general common-law rule in England and Amer- 
ica.^ For this accords with the principle that married women 
are incapable of binding themselves by contract ; and the 
effect of her conveyance under the statute is simply that she 
j)asses whatever title she had in the lands conveyed. Yet 
the husband may be bound on his part, where he joins her, 
notwithstanding.^ In England, where the wife formerly 
passed her real estate by suffering a fine, it was held long ago 
that if the grantee were evicted by a paramount title, the 
wife could be sued on her covenant of warranty after her 
husband's death.^ So, too, it was formerly said that the wife 
should be held bound on the covenants contained in a lease 
of her lands executed during coverture, with her husband, 
and afiirmed by herself after his death, by such acts as the 
acceptance of rent;" and this doctrine is certainly not un- 
reasonable so far as a subsequent breach of covenant is con- 
cerned. But further than this, courts would not probably go 

1 See Bayler v. Commonwealth, 40 Falmouth Briilge Co. v. Tibbetts, 16 
Penn. St. 37, per Strong, J.; ib. p. B. Monr. 637 ; Den i-. Demarest, 1 Zab. 
44. (N. J.) 525 ; Rawle Cov. 573, 574 ; Bota- 

2 Neimcewicz v. Gahn, 3 Paige, 614 ; ford v. Wilson, 75 111. 133. 

Hawley I'. Bradford, 9 Paige, 200 ; Var- 5 Ruell v. Sliuman, 28 Ind. 464; 

tie V. Underwood, 18 Barb. 561. See Griner v. Butler, 61 Ind. 3G2. 
Schoul. Hus. & Wife, § 177, more « Wotton r. Hele, 2 Saund. 177 ; 1 

fully. Mod. 200. Chancellor Kent justly ob- 

3 Strotber v. Law, 54 HI. 413; Lo- serves that this was a very strong case 
gan V. Thrift, 20 Ohio St. 62; Schoul. to show tiiat slie might deal with her 
Hus. & Wife, § 177, and cases cited. land by fine as a feme sole. 2 Kent 

4 2 Kent Com. 167, 168; Fowler v. Com. 167. 

Shearer, 7 Mass. 21, per Parsons, C. J. ; -2 Saund. 80, note 9. 

150 



CHAP. VI.] wife's BEAIi ESTATE, ETC. § 96 

at this clay.^ And in this country the wife's covenants in a 
conveyance executed jointly with lier husband are considered 
binding upon her only by way of estoppel ; and not so as to 
subject her to suit for damages.^ And as she is not answer- 
able for a breach of covenant, neither are her heirs or 
devisees.^ Indeed, in New York, the wife's privilege in this 
respect is carried much further, for she is permitted to ex- 
ecute a conveyance of land with her husband, containing a 
covenant of warranty on her part, and then to defeat the title 
by acquiring an adverse interest afterwards.^ 

§ 96. Conveyance, &c., of Infant "Wife's Lands. — A deed of 
the wife's real estate, executed by husband and wife while 
tlie latter is under age, may be avoided by the wife within 
reasonable time after discoverture, though more than twenty 
years have elapsed ; ^ for this is analogous to the conveyance 
of an infant feme sole in respect of validity.*^ But not, as it 
is held, where the wife, being apparently of full age, made 
oath that she was of age.'' As to the lapse of time permitted 
a wife for disaffirming the deed executed by her during in- 
fancy, the rule appears to be that a reasonable time should 
be allowed her after coverture has terminated by the death 
of her husband or their complete divorce, even though twenty 
or thirty years may meantime have elapsed since her attain- 
ment to majorit}^^ 

1 Her covenant for quiet enjoyment West, 8 Ohio, 225 ; Massie v. Sebas- 
in the lease of her lands will not bind tian, 4 Bibb, 436; Nash v. Spofford, 
her. Foster v. Wilcox, 10 R. I. 443. 10 Met. 192. And see 4 Com. Dig, 

2 Nash V. Spofford, 10 Met. 192; 19h. 

Jackson v. Vanderheyden, 17 Johns. ^ Yourse v. Norcross, 12 Mo. 549. 

167 ; Dean v. Shelly, 57 Penn. St. 426; And see Porch v. Fries, 3 C. E. Green, 

Hyde v. "W^irren, 46 Miss. 13. 204 ; Dodd v. Benthal, 4 Heisk. 601 ; 

Her subsequent promise as widow Williams u. Baker, 71 Penn. St. 476. 
to be answerable for a breach of cove- ^ Dixon i'. Merrett, 21 Minn. 196. 

nant committed during her coverture ^ Schmitheimer v. Eiseman, 7 Bush, 

is without consideration. State Nat. 298. Sed qu., where the land belongs 

Bank v. Robidoux, 57 Mo. 446. to the wife's general, and not her sep- 

3 Foster v. Wilcox, 10 R. I. 443. arate, estate. Sims v. Everhardt, 102. 
* Jackson v. Vanderheyden, 17 U. S. Supr. 300, commenting upon 

Johns. 167 ; Carpenter v. Schermer- Scranton v. Stewart, 52 Ind. 68. 

horn, 2 Barb. Ch. 314. And see Shu- 8 Sims v. Everhardt, 102 U. S. Supr. 

maker v. Jolmson, 35 Ind. 33. Contra, 300. And see Harrer v. Wallner, 80 

Colcord V. Swan, 7 Mass. 291 ; Hill v. 111. 197. 

151 



§ 98 THE DOMESTIC RELATIONS. [PART H. 

§ 97. Distinction between Wife's General and Separate Real 
Estate. — We may observe, on the whole, that, while modern 
statutes greatly vary in this country, as to the requisites 
attending a married woman's conveyance of her lands, and, as 
we shall notice hereafter, concerning her legal dominion over 
her lands, the disposition is to construe those requisites more 
strictly in the case of her general or common-law real estate 
than where she owns lands as her statutory separate estate. 
Hence a distinction, which modern legislation tends all the 
while to obliterate, between the conveyance of the wife's 
general land and of her separate land. As to the latter, 
estoppel in pais is sometimes applicable ; but not so, usu- 
ally, with the former. In the one case the wife's own 
conduct during coverture, by way of affirmance or receiv- 
ing benefits, may bind her in spite of some defective meth- 
od of conveyance : in the other and present case it does 
not.i 

§ 98. "Wife's Life Estate ; Joint Tenancy, &c. — If the wife at 
the time of her marriage has a life estate in lands, her hus- 
band becomes seised of such estate in the right of his wife, 
and he is entitled to the profits during coverture. So if it 
were granted to a trustee for her own use. And the same 
rule applies whether the estate be for the life of the wife or 
of some other person. If the estate be for the wife's own 
life it terminates at her death, and the husband has no further 
interest in it. But if it be an estate for the life of another per- 
son who survives her, the husband takes the profits during the 
remainder of such person's life as a special occupant of the 
land. The husband's representatives in either case take crops 
growing on the land at the time of his death.^ But the hus- 
band might, at common law, take a release or confirmation to 
enlarge his life estate.^ The conveyance of the wife's life es- 
tate follows the usual statute rule as to her conveyances.^ 

1 See cs. 10, \l,post; also Wood v. ^2 Kent Com. 134; 1 Bright Hub. 

Terry, 30 Ark. .385 ; Oglesby Coal Co. & Wife, 112, 113. 

V. Pasco, 79 111. 161 ; Sims v. Ever- 3 Co. Litt. 299. 

hardt, 102 U. S. Supr. 300, opinion of * Henning c. Harrison, 13 Bush, 723. 

court. As concerns the wife's life estate in her 

152 



CHAP. VII.] wife's separate PROPERTY. § 100 

A husband acquires, by his marriage, the right to use and 
occupy, during coverture, lauds held by his wife in joint 
tenancy.^ 

§ 99. Husband's Freehold Interest in Wife's Land not Devis- 
able by Wife. — The freehold which the husband acquires in 
his own right in the real estate of his wife during her cover- 
ture is a subject upon which the wife's devise cannot operate, 
more than her conveyance, independently of his permission.^ 



CHAPTER VII. 

COVERTURE MODIFIED BY EQUITY AND RECENT STATUTES. 

§ 100. Prevalent Tendency to Equalize the Sexes ; Marriage Re- 
lation affected. — Aside from woman's political relations, and 
those social and business opportunities not peculiar to the mar- 
riage state, which are now extended to her sex, we may observe, 
both in England and the United States, a liberal disposition 
of court and legislature within the present century to bring 
her nearer to the plane of manhood, and advance her condi- 
tion from obedient wife to something like co-equal marriage 
partner. Man makes the concessions, step by step, out of 
deference to woman's wishes, and in token of her influence ; 
and thus does the coverture theory of marriage gradually 
fade out of our jurisprudence. Tlie liberal tendencies of 
modern civilization favor this change : moreover, that love of 
justice and individual liberty which always characterized our 
Saxon race, and the steadfast disposition of English and 
American courts both to administer the written law impar- 
tially, and to extend and adapt its provisions to the ever- 
changing wants of society. 

real or personal property, the English i Bishop v. Blair, 36 Ala. 80 ; Roy- 
chancery courts liave followed out ex- ston v. Royston, 21 Ga. 161. 
ceptions to the doctrines of equitable 2 Clarke's Appeal, 79 Penn. St. 376. 
assignment already noticed, with their See post, as to the wills of married 
limitations. See Purdew v. Jackson, 1 women. 
Russ. 1 ; Schoul. Hus. & Wife, § 157 ; 
supra, § 84. 

153 



§ 100 THE DOMESTIC RELATIONS. [PART H. 

Our preceding pages have shown, in respect to the person 
of the spouses, their matrimonial domicile, the conjugal re- 
straint and correction of the wife, the custody of the offspring ; 
again, as to the wife's power to bind as agent, her necessa- 
ries, or, in respect of property, her equity to a settlement, 
and modern modes of conveying her lands ; a modern 
disposition to so construe and apply or niodity the old law 
that she may enjoy a very fair share of freedom and consid- 
eration in the household, and maintain her dignity under all 
circumstances. Husband and wife cease to be one ; they are 
two distinct persons with distinct and independent rights. 
At the same time the idea of unity in the domestic govern- 
ment — of domestic government at all — becomes weakened ; 
the cruel or dissolute husband having less power for ill, and 
the just and faithful one, too, finding his legal authority over 
a high-tempered companion exceedingly precarious. Modern 
legislation accomplishes even more than judicial construction 
towards this result, especially in the United States ; and 
indeed, as to the married women's acts and divorce acts of 
this day, it may be truly said that England borrows more 
from this country than does this country from England. 

Of the American married women's acts, which relate 
chiefly to their property and contracts, we have already 
spoken.^ These acts are modern ; still, they are constantly 
undergoing local change, and immense labor has been neces- 
sarily bestowed by local courts during the last fifteen years 
in expounding them. We shall seek to place before the 
reader such legal results as may be thought to have passed 
into principles ; as for the rest, it is a chaos of uninteresting 
rubbish, from which the practitioner selects only that which 
obtains in his own jurisdiction. All this legislation regard- 
ing the rights of married women should be harmonized and 
simplified as soon as practicable. This is not easy with so 
many independent States, each carving out its own career. 
And the difficulty is aggravated from the fact that the mar- 
ried women's acts had no common origin ; there was no 

1 See Part I., supra. 

154 



CHAP, vn.] wife's separate property. § 102 

model found to work from, English or American, and the 
results were necessarily discordant. 

§ 101. Modern Changes in Married Women's Rights ; How- 
to be Studied. — The changes to which we shall proceed to 
direct the reader's inquirj^ under our main heading, must 
be studied as by way of supplement or supersedure to the 
coverture doctrine set forth in the chapters preceding. As 
before, these changes affect the wife's debts and contracts, 
her injuries and frauds, and her personal and real property. 
They are partly of equitable and partly of statutory origin. 
But, most of all, they impair the old doctrine which treated 
the husband as absolute or temporary owner, controller, and 
manager of his wife's property and acquisitions, by virtue of 
the marriage, and create in favor of the wife what is com- 
monly known in these days as her separate property. 

Here, therefore, as on most points relating to the law of 
husband and wife, one must first examine the old common- 
law or coverture doctrine, and then perceive how far modern 
equity rules or the local legislation may have varied that law. 
Such changes date back not much farther than a century, the 
most radical of them being less than half a century old ; the 
equitable changes being for the most part of earlier, and 
the statutory changes of later, date, and the law of England 
and this country harmonizing on the whole subject, at the 
independence of tlie American colonies, as at their first settle- 
ment. The instance will be found rare at the present day, 
where an important common-law principle respecting the 
wife's contracts, torts, property, and the formalities of suit is 
not at this day essentially changed. 

§ 102. Modern Equity and Statute Doctrine ; England and the 
United States. — As preliminary to an exposition of the wife's 
separate property, we may observe that there is an equitable 
doctrine on this subject and a statutory doctrine. The 
equitable doctrine is the prior in point of time, and is chiefly 
the work of English cliancery courts ; while the statutory 
doctrine, which is of later date, is founded in the married 
women's acts, now familiar in our several States, and their 
judicial construction. The equitable doctrine is more purely 

155 



§ 103 THE DOMESTIC RELATIONS. [PART II. 

English ; the statutory doctrine more purely American, — 
though each country has come, ere this day, to borrow in this 
respect from the other. American cases frequently distinguish 
still between an equitable separate estate and a statutory sep- 
arate estate in favor of a wife ; but so sweeping is the latest 
legislation in most States that such a distinction becomes of 
comparatively little consequence. 



CHAPTER VIII. 

THE wife's SEPARATE PROPERTY; ENGLISH DOCTRINE. 

§ 103. Origin and Nature of Separate Estate in Chancery. — 
In the present chapter, and with reference to Great Britain, 
our concern is almost exclusively with the remarkable devel- 
ojjment of an equitable doctrine of separate property. Emer- 
ging from coverture and the common law, we come out into 
the light of equity ; and here all things assume a new aspect. 
The married woman is no longer buried under legal fictions. 
She ceases to hold the strange position of a being without an 
existence, one whose identit}^ is suspended or sunk in the 
status^ of her husband ; she becomes a distinct person, with 
her own property rights and liabilities. Her condition is not as 
independent as before marriage ; this the very idea of the mar- 
riage relation and the disabilities of her sex forbid. But she 
is dependent onl}'- so far as the laws of nature and the forms 
of society make her so ; while her comparative feebleness 
renders her the special object of chancer}^ protection, when- 
ever the interests of herself and her husband clash together. 
She may contract on her own behalf ; she may sue and be 
sued in her own name ; she may hold lands, goods, and 
chattels in her own right, which property is known as the 
wife's separate estate, or estate limited to the wife's separate 
use. 

The doctrine of the wife's separate estate originated in the 
spreading conviction that it was expedient for the interests of 
156 



CHAP, viii.] wife's sepaeate peopeety. § 103 

society that means should exist by which, upon marriage, 
either the parties themselves by contract, or those who in- 
tended to give bounty to a family, might secure property 
without that property being subject to the control of the 
husband. 1 In England that doctrine was established more 
than a century ago, and to the equity courts belong the 
credit of the invention. ^ The equity to a settlement, of which 
we have already spoken, is part of that doctrine.^ While at 
common law the separate existence of the wife Avas neither 
known nor contemplated, equity considered that a married 
woman was capable of possessing property to her own use, 
independently of her husband ; and the courts gradually 
widened and developed this principle until it became fully 
settled that, however the wife's property might be acquired, 
whether through contract with her husband before marriage, 
or by gift from him or from any stranger independently of 
such contract, equity would protect it, if duly set apart as 
her separate estate, no matter though the husband himself 
must be held as the trustee to support it."^ 

This great change in the jurisprudence of England was 
effected by a few great men without any help from the legis- 
lature. The court of chancery in this as in other respects 
recognized its true function of making the law work justice 
by accommodating its operation to the altered circumstances 
of society.'^ Obscure and doubtful indications of the wife's 
separate estate are found as early as the reign of Queen Eliza- 
beth. It seems to have been plainly recognized by Lord 
Nottingham, Lord Somers, and Lord Cowper. In Lord Hard- 
wicke's time it was perfectl}^ established ; and Lord Thurlow, 
in sanctioning the clause against anticipation, prevented the 
wife herself from destroying the fabric which had been reared 
for her benefit.^ 

I Rennie v. Ritcliie, 12 CI. & Fin. 234 ; * Tullett v. Armstrong, 1 Beav. 21 ; 

Peachey Mar. Settl. 259. Peachey Mar. Settl. 2G0, and cases 

~ Harvey v. Harvey, 1 P. Wms. 124; cited. 

Woodnieston v. Walker, 2 R. & M. s Macq. Hus. & Wife, 284. 

205; Tullett i-. Armstrong, 1 Beav. 6 See Pybus v. Smith, 4 Bro. C. C. 

21. 485 ; Tullett v. Armstrono^, per Lord 

3 Suprn, § 85 ; Sclioul. Hus. & Wife, Langdale, 1 Beav. 22 ; Macq. Hus. & 

§§ 160-162. , Wife, 285. 

157 



§ 105 THE DOMESTIC RELATIONS. [PART II. 

§ 104. Whether Appointment of a Trustee is Necessary. — 
Where property comes to the wife's separate use, it is treated 
in equity as trust estate, of which she is cestui que trust. 
Yet it is not actually necessary that the instrument constitut- 
ing the separate use should itself make an appointment of 
trustees. Formerly the rule was otherwise ; but at the pres- 
ent day equity makes the husband a trustee where no other 
holds possession, and thus supports the trust.^ And where a 
trustee, regularly appointed, in breach of his duty, and with- 
out the privity of the wife, pays the trust-money over to the 
husband, equity follows the money into the husband's hands, 
and makes him likewise accountable as his wife's trustee. ^ It 
impresses a trust upon the wife's separate estate wherever 
such estate may be found. But while the appointment of 
third persons as trustees is not essential to give the wife a 
separate estate, or a separate interest in any particular estate, 
it is certainly desirable on many accounts, and there is in it 
this marked advantage, that the property is made thereby more 
secure, because such influence of the husband over the wife is 
prevented as might induce her to abandon the property to him.^ 

§ 105. Coverture applies Prima Facie ; How Separate Estate 
is created. — Prima facie the legal ownership of property 
which is in the wife at the time of marriage, or comes to 
her during coverture, vests in the husband under his marital 
right. It is therefore necessary that the intention to establish 
a separate use be clearly manifested, else courts of equity 
will not interpose against him. No technical formalities or 
expressions are required ; but the purpose must appear be- 
yond the reach of reasonable controversy, in order to entitle 
the wife to claim the property as her own in derogation of 
the common law.* 

1 Bennett v. Davis, 2 P. Wms. 316 ; phery v. Richards, 25 L. J. Eq. 444 ; 
Davison y. Atkinson, 5 T. R. 435; Mes- s. c. 2 Jur. 433; Peachey Mar. Settl. 
senger v. Clarke, 5 Exch. 893 ; Peachey 260 ; Macq. Hus. & Wife, 291. Equity 
Mar. Settl. 260 ; Fox v. Hawks, L. R. can sanction, on behalf of a married 
13 Ch. D. 822. woman, the compromise of a suit to 

2 Rich V. Cockell, 9 Ves. 375. See make a trustee liable for breach of 
also Izod V. Lamb, 1 Cr. & J. 35. trust in the fund. Wall v. Rogers, 

3 Newlands v. Paynter, 10 Sim. 377 ; L. R. 9 Eq. 58. 

8. c. on appeal, 4 M. & Cr. 408 ; Hum- * Macq. Hus. & Wife, 307 ; Tyler v. 

158 



CHAP. VIII.] wife's SEPAEATE PROPERTY. 



106 



As a wife is only made a party to a suit instituted by 



Lake, 2 Russ. & M. 183 ; Kensington v. 
Dollond, 2 M. & K. 184 ; Moore v. Mor- 
ris, 4 Drew. 37 ; Peacliey Mar. Settl. 
279. As to the words whicli in them- 
selves indicate the intention of creating 
a separate use, there liave been numer- 
ous decisions. Among them the fol- 
lowing expressions are held sufficient : 
" For her full and sole use and bene- 
fit." Arthur v. Arthur, 11 Ir. Eq. 511. 
" For her own sole use and benefit." 
Ex parte Killick, 3 Mon. D. & De G. 
480. " For her sole use." Lindsell i'. 
Thacker, 12 Sim. 178. " For her sole 
and separate use and benefit." Archer 
V. Rorke, 7 Ir. Eq. 478. " For her sole 
and sepnrate use." Parker v. Brooke, 
9 Ves. 583 ; Adamson v. Armitage, 19 
Ves. 415. " For her sole use and bene- 
fit." V. LjMie, Younge, 562. " For 

her own sole use, benefit, and disposi- 
tion." Ex parte Ray, 1 Madd. 199. 
" For her sole and absolute use." Da- 
vis V. Prout, 7 Beav. 288. " For her 
own use, and at her own disposal." 
Prichard v. Ames, Turn. & Russ. 222. 
" To be at her disposal, and to do there- 
with as slie shall think fit." Kirk v. 
Paulin, 9 Vin. Abr. 96, pi. 43. " Solely 
antj entirely for her own use and bene- 
fit." Inglefield v. Coghlan, 2 Coll. 247. 
" For her own use, independent of any 
husband." Wagstaff v. Smith, 9 Ves. 
620. " Not subjected to the control of 
her husband." Bain v. Lescher, 11 
Sim. 397. " For her own use and bene- 
fit, independent of any other person." 
Margetts v. Barringer, 7 Sim. 482. 
"For her livelihood." Darley i\ Dar- 
ley, 3 Atk. 399. And see Peachey 
Mar. Settl. 279, 280; Macq. Hus. & 
Wife, 308, 309. "As her separate 
estate." Fox v. Hawks, L. R. 13 Ch. 
D. 822. " To receive the rents while 
she lives, whether married or single." 
Goulder v. Camm, De G. F. & J. 146. 

So, too, the intention of excluding 
the husband's marital rights may be 
inferred from the nature of the pro- 
visions attached to the gift ; as where, 
for example, the direction is that the 



property shall be at the wife's disposal, 
or there is some other clear indication 
that such was the donor's intention. 
Prichard v. Ames, Turn. & Russ. 223 ; 
Peachey Mar. Settl. 279. Lord Thur- 
low once decided that a direction " that 
the interest and profits be paid to her, 
and the principal to lier or to her order 
by note, or writing under her hand," 
created a trust for tlie wife's separate 
use. Hulme v. Tenant, 1 Bro. C. C. 16. 
So in the judgment of Sir William 
Fortescue, Master of the Rolls, did the 
words " that she should enjoy and re- 
ceive the issues and profits of the 
estate." Tyrrell v. Hope, 2 Atk. 501. 
"For to what end should she receive 
it," says this judge, "if it is the prop- 
erty of the husband the next mo- 
ment "? " And Lord Loughborough 
gave a like effect to a direction that 
certain property should be delivered 
up to a married woman " whenever she 
sliould demand or require the same." 
Dixon V. Olmius, 2 Cox, 414. A simi- 
lar construction has also been applied 
to the words, " to be laid out in what 
she (the wife) shall think fit." Atch- 
erley v. Vernon, 10 Mod. 518. See 
Blacklow V. Laws, 2 Hare, 52. And a 
legacy to a married woman, " her re- 
ceipt to be a sufiicient discharge to the 
executors," has been held sufiicient. 
Warwick v. Hawkins, 13 E. L. & Eq. 
174. A legacy added by a codicil to 
the legacy given by a will is subject to 
the incidents of the original legacy ; 
and the separate use may be extended 
by construction from the will to the 
codicil. Day v. Croft, 4 Beav. 501. 

Yet, on the other hand, tlie form of 
expression will go far towards deter- 
mining whether property is or is not 
limited to the wife's separate use. 
Vice-Chancellor Wigram, in a case be- 
fore him not many years ago, was 
forced to admit that while ruling out 
certain property from the wife's sep- 
arate use, on account of the testator's 
insufficient language, he had a strong 
opinion that he decided against the 

159 



§105 



THE DOMESTIC EELATIONS. 



[part II. 



her husband on the alleged ground of her having sepa- 



real intention of tlie testator. Black- 
low V. Laws, 2 Hare, 49. It is to be 
observed, then, that courts of equity 
will not deprive the husband of his 
rights at law unless the words of them- 
selves clearly import the intention to 
exclude him. Peachey Mar. Settl. 
281 ; Tyler v. Lake, 2 lluss. & M. 188; 
Massey v. Parker, 2 M. & K. 181; 
Macq. Hus. & Wife, 309. A mere trust, 
tlieretbre, to pay the income of a fund 
to a certain married woman, or to her 
and her assigns, is not sufficient to pre- 
vent the marital rights from attaching. 
Lumb V. Milnes, 5 Ves. 517 ; Brown v. 
Clark, 3 Ves. 16G; Spirett v. Willows, 
11 Jur. N. s. 70. jVor is a devise to a 
certain widow's sole use and benefit 
without reference to a future husband. 
Gilbert v. Lewis, 1 De G. J. & M. 38. 
Even a gift to a wife " for lier use " has 
been held not a sufficiently unequivo- 
cal declaration of an intention to create 
a trust for the separate use of the wife. 
Jacobs V. Amyatt, 1 Madd. 376, n. ; 
Wills V. Sayers, 4 Madd. 411 ; Roberts 
V. Spicer, 5 Madd. 491. Some words 
have greater efficacy than others. 
Thus it has been said that the word 
" enjoy " is very strong to imply a 
separate use. Sir William Fortescue, 
in Tyrrell v. Hope, 2 Atk. 558. And 
much controversy has arisen in the 
English chancery courts over the use 
of the word "own" as synonymous 
with " sole," the result of which is to 
establish that there is a substantial dis- 
tinction between a gift to a wife "for 
her sole use " and a gift " for her own 
use," or " for her own use and benefit." 
See Lord Brougham's judgment in 
Tyler v. Lake, ^2 Russ. & M. 187; 
Johnes v. Lockhart, 3 Bro. C. C. 38-3, n. ; 
Peachey Mar. Settl. 282. And it hav- 
ing been decided that the word "own" 
had no exclusive meaning, it was next 
determined that a trust to pay the pro- 
ceeds of real estate into the proper 
hands of a married woman for her own 
use and benefit was not a gift to the 
wife's separate use, the word " proper " 

160 



being the Latin form of the word 
" own," and therefore payment into 
the wife's proper hands signifying the 
same thing as into her own hands. 
Tyler v. Lake, 2 Russ. &M. 187. Lord 
Brougham thus in effect overruled a 
decision of Lord Alvanley, who had 
held that the use of the word " proper" 
would create a separate use. Hartley 
V. Hurle, 5 Ves. 545. This later con- 
struction, coming from a jurisdiction 
so conclusive, has since prevailed, 
though not without some expressions 
of dissatisfaction in the lower courts. 
See Vice-Cliancellor Wigram, in Black- 
low v. Laws, 2 Hare, 49 : Macq. Hua. 
& Wife, 309 ; Peachey Mar. Settl. 282. 
And again, language of the donor, ex- 
pressive of his intent to limit property 
to the wife's separate use, may be con- 
trolled by other words or provisions so 
as to negative such a supposition. 
This principle was applied to the wife's 
disadvantage in a case where others 
were made the objects of the bounty 
with her. Wardle v. Claxton, 9 Sim. 
524. And see Gilchrist i-. Cator, 1 De 
G. & S. 188. Yet it has been held that 
a gift to tlie wife's separate use was 
good, although the support and educa- 
tion of children was annexed as a 
charge upon it. Cape v. Cape, 2 You. 
& Coll. Exch. 543. And see n. to Macq. 
Hus. & Wife, 310. The expression 
"her intended husband" may apply 
to a second husband, where there are 
words limiting income to the wife's 
separate use during her life, for this 
latter expression controls the former. 
Hawkes v. Hubback, L. R. 11 Eq. 5. 

Whether the word " sole " is of itself 
sufficient to create a separate use is 
doubtful. Diflferent opinions have been 
expressed on this point. But in a re- 
cent case before Vice-Chancellor Kin- 
dersley the word "sole" was deemed 
insufficient, in a devise of property to 
a female, her heirs, executors, adminis- 
trators, and assigns, " for her and their 
own sole and absolute use and benefit," 
to create a separate estate; since the 



CHAP, viri.] wife's separate peopeety. § 106 

rate estate, in regard to which she is 2^ feme sole, the husband, 
by making her a part}^ admits it to be her separate estate.^ 

§ 106. Separate Use binds Produce of Fund. — A gift of 
the produce of a fund is to be considered a gift of that 
produce in perpetuity ; hence it is a gift of the fund itself, 
nothing appearing to show a different intention. Therefore 
a bequest of a fund to a woman, with the interest thereon, 
to be vested in trustees, — the income arising therefrom to be 
for her separate use and benefit, — vests the capital for her 
separate use.^ Where a testator simply directs the invest- 
ment of a fund in trustees, for the benefit of a married 
woman, independent of the control of her husband, this is 
enough to carry the whole fund to her separate use.'^ So it 
is held that where stock was given to trustees upon trust, to 
pay the dividends to a married woman for her separate use, 
and there Avas no limitation of a life interest, an absolute 
interest in the capital passed to her, which she could dispose 
of as a feme sole^ 

It is fair to suppose that in equity the wife's separate use 
binds the produce of the fund as well as the fund itself. 
There are some cases decided in the courts of common law 
where the contrary has been maintained, and to this effect, 
that, although a wife may be entitled to separate property, 
the dividends arising therefrom vest in her husband.^ This 
is no reason, however, why the equity doctrine should not be 
as we have stated ; indeed, if it were otherwise, as an Eng- 
lish writer has observed, the object of separate use would be 
in many instances frustrated.^ What the wife saves out of 
her separate income, too, if its identity be properly preserved, 

word "sole," as here used, had refer- 3 gimons v. Howard, 1 Keen, 7, per 

ence not only to the female herself, hut Lord Langdale. 

to her heirs, executors, administrators, * 5 Elton v. Shephard, 1 Bro. C. C. 

and assigns, who certainly could not he 532 ; Haig v. Swiney, 1 Sim. & Stu. 487. 
considered beneticiaries under any such 5 Tugraan v. Hopkins, 4 Man. & 

trust. Lewis v. Mathews, L. R. 2 Eq. Gr. 389 fCarne i-. Brice, 7 M. & W. 183. 
177. And see Troutbeck v. Boughey, " See Macq. Hus. & Wife, 291, and n. 

L. R. 2 Eq. 534. And see dictum of Sir Launcelot Shad- 

1 Earl V. Ferris, 19 Beav. 69. well, in Molony v. Kennedy, 10 Sim. 

2 Adamson v. Armitage, 19 Ves. 254 (quoted ih.), which intimates that 
416; Macq. Hus. & Wife, 311 ; Trout- tliis is the equity doctrine; per Lord 
beck I.'. Boughey, L. R. 2 Eq. 534. Hardwicke, Churchill v. Dibbiu, 9 Sim. 

11 161 



§ 107 THE DOMESTIC RELATIONS. [PART U. 

is in equity her separate estate.^ It must only be observed 
that income or produce of the fund, if once in the husband's 
hands, may readily be presumed to have been bestowed upon 
him by the wife, either for himself or the family expenses. 

§ 107. Separate Use exists only during Marriage ; Exceptions ; 
Ambulatory Operation. — The quality of separate estate ceases 
on the death of the wife ; and, if her husband survives her, 
he becomes entitled to the property as though it had never 
been settled to her separate use. For the separate use was 
created onl}'- for the marriage state, and was not designed 
to extend beyond the dissolution of marriage, or when the 
necessity of the trust should be no longer felt. Thus chases 
in possession settled to the wife's separate use vest in the 
husband absolutely upon his survivorship.^ The wife's sepa- 
rate choses in action may be recovered by him in his right as 
her administrator.^ So, doubtless, her separate chattels real 
go to the husband as survivor. In short, the wife's separate 
property, upon the wife's death, is freed from its peculiar in- 
cidents, and becomes like any other estate of hers which may 
remain at her decease.* And it seems clear that the husband 
may be tenant by the curtesy, as usual, if not expressly ex- 
cluded from all marital interest.^ 

Yet the wife may defeat her husband's claim after her 
death by exercising her power of disposition during her life- 
time, — a power which is recognized in a married woman so 
far as her separate property is concerned.^ So, too, by the 
terms of the trust, the husband's rights on her decease may 
be prevented from attaching.'' 

447, n. Co??<ra, Peachey Mar. Settl. 263, ^ Lushington v. Sewell, 1 Sim. 548; 

where cases are cited which do not sup- Roberts v. Dixwell, 1 Atk. 606, per Lord 

port the statement in the te.xt. Hardwicke; Macq. IIus. & Wife, 287 ; 

1 Barrack v. M'Culloch, 3 Kay & J. Appleton v. Rowley, L. R. 8 Eq. 139; 
110 ; Brooke ?•. Brooke, 4 Jur. n. s. Cooper v. Macdonald, L. R. 7 Ch. D. 
472. 288. Otlierwise, where by the terms 

2 Molony v. Kennedy, 10 Sim. 254. of the separate use the husband is ex- 
8 Proudley v. Fielder, 2 Myl. & K. eluded from curtesy. Moore v. Web- 

57 ; Drury v. Scott, 4 You. & Coll. Ch. ster, L. R. 3 Eq. 267. 

264 ; Stead v. Clay. 1 Sim. 294. 6 Macq. Hus. & Wife, 285. See post, 

* Macq. Hus. & Wife, 285 ; Peachey § 110. 

Mar. Settl. 278; Sloper v. Cottrell, 6 " Johnstone v. Lurab, 15 Sim. 308. 

El. & Bl. 501 ; Bird v. Pegrum, 13 C. B. Thus, where a wife entitled to separate 

650; 8. c. 17 Jur. 579. property for life, under a settlement 

162 



CHAP. VIII.] wipe's separate PROPERTY. § 108 

Since the separate use can exist only in the marriage state, 
it may sometimes have an ambulatory operation, so as to be 
effectual according as the woman happens at the time to be 
covert or sole. Supposing, then, a gift be made to the sep- 
arate use of a woman who is single at the time the gift 
takes effect, it is clear that she shall enjoy the gift abso- 
lutely and without restraint. But if she afterwards mar- 
ries, will the separate use operate? It will, unless by the 
terms of her marriage settlement she expressly renounces it.^ 
Supposing, however, she outlives her husband, the separate 
use ceases as in other cases, since it can only be effectual 
during coverture. But if she marries again, the separate 
use, consistently with its intention, revives once more ; and 
so onward, from time to time, ceasing and reviving alter- 
nately upon each alteration of her personal condition,^ with, 
however, this reservation, that if confined by intendment to a 
particular husband or a particular coverture, the separate use 
ceases to operate when that marriage ends.^ 

§ 108. "Wife's Right to renounce Separate Use, &o. — A single 
woman, having a gift expressed to be to her separate use, 
may renounce such separate use upon her marriage. This 
will be readily admitted. Yet the courts construe an act of 
this sort strictly.* The evidence must be clear in all cases, 
that a single woman marrying has renounced her separate 
use ; for it will not be presumed that she means, by the mere 

which directed that all the trust prop- while the latter was bound by the 

erty, and all the income thereof " re- trusts of the deed as the result of in- 

maining unapplied "at her death, should come "remaining unapplied" at her 

go in a certain manner, left her hus- death. lb. 

band some years before her death ; and ^ Tullett v. Armstrong, 1 Beav. 1 ; 

the trustees received the income regu- Anderson v. Anderson, 2 Myl. & K. 

larly, and paid it into a bank in their 427 ; Macq. Hus. & Wife, 305. 
own names, with her privity, making ^ Macq. Hus. & Wife, 300 ; Tullett 

remittances to her as she required mon- v. Armstrong, 1 Beav. 1, affirmed by 

ey; and upon the wife's death the Lord Cottenham, 4 Myl. & Cr. 377; 

sum of .£888 was found among her Hawkes v. Hubback, L. R. 11 Eq. 5. 
effects, and a balance of £2,049 accu- 3 2 Perry Trusts, §§ 652, 053, and 

mulated income stood to the credit of cases cited ; Benson v. Benson, 6 Sim. 

the trustees in the bank ; it was held 26 ; 1 Ch. Ca. 307 ; 1 Vern. 7 ; Moore 

by the Vice Chancellor of England v. Harris, 4 Dr. 33. 
that the former went to the surviving * Johnson v. Johnson, 1 Keen, 648 ; 

husband by virtue of his marital right, Macq. Hus. & Wife, 806. 

163 



§ 109 THE DOMESTIC RELATIONS. [PART II. 

fact of matrimony, to relinquish her control of the property. 
But antenuptial settlements maybe made on reasonable terms 
by the parties contemplating marriage. And there is nothing 
to prevent the operation of a trust for separate use from being 
confined to a particular coverture, where all concerned are so 
minded. In such cases, however, the wife marrying again can 
always stipulate for her separate use.^ 

It is possible that a provision for the wife's separate use 
may fail, as against third parties, hoyia fide purchasers, wher- 
ever the husband can dispose of the property without their 
having notice of the trust.^ 

§ 109. Separate Use and the Marital Obligations. — It WOuld 
appear to be the English doctrine that the marital obligations 
of the husband are not essentially altered by her right to 
separate property. Thus, it is held that the wife is not 
bound to maintain her husband out of her separate fortune, 
nor to bring any part of it into contribution for family pur- 
poses.^ And there seems to be no legal authority to support 
the notion that the husband's liabilities on her general debts 
are thereby altered during their joint lives.'* The common- 
law liabilities of the husband, to be sure, rest in great meas- 
ure upon his right to his wife's property ; yet we may admit 
that it would be difficult to adjust any new rule except upon 
partnership principles. If one marries a rich wife, therefore, 
who chooses to hoard her savings by herself, bequeath all to 
others, and compel him, a poor man, to pay for everything 
she or the children need, all their lives, he assuming her 
antenuptial debts besides, it is possible that even equit}^ will 
den}- him relief. We here suppose that neither legislation 
nor the wife's own disposition of her separate property affects 
the question. 

Moreover, the wife is not bound to maintain, educate, or 
provide for her children out of her separate property ; and 

1 Macq. Hus. & Wife, .307. See ^ Lamb v. Milnes, 5 Ves. 520. 
Knight V. Knight, 6 Sim. 121 ; Bradley * See Macq. Hus. & Wife, 288. But 
V. Hughes, 8 Sim. 149 ; Benson v. Ben- see infra, chapters 9-12. In re Baker's 
son, c'^Sim. 126. Trusts, L. R. 13 Eq. 168. 

2 Parker v. Brooke, 9 Ves. 583; 
Macq. Hus. & Wife, 291. 

164 



CHAP. VIII.] wife's separate PROPERTY. § 110 

even though she elope from her husband, equity will not lay- 
hold of her estate for that purpose.^ And yet, whenever a 
settlement of the wife's equity is decreed, where the hus- 
band or his legal representative seeks to recover for himself 
her choses in action, the children of the marriage are included 
within its benefits ; though, to be sure, the wife may waive 
the claim altogether without reference to them.^ 

§ 110. Clause of Restraint upon Anticipation. — The clause 
of restraint upon anticipation is an important element in the 
doctrine of the wife's separate use, as administered in Eng- 
land. This clause was sanctioned by Lord Thurlow ; ^ is 
frequently to be met with in modern conveyances ; and is 
pronounced by Mr. Macqueen, and by eminent English ju- 
rists, a salutary clause which takes from the wife the power of 
bringing rain upon herself.^ The restraint applies not only 
to personal but also to landed property.^ It may be imposed 
equally upon estates for life or in fee.^ 

The name of this important clause originates in the circum- 
stances under which it was first applied.* The general pur- 
port of this expression is that the wife shall be prohibited the 
anticipation of the income of her separate property or the 
anticipation of the capital of the fund. Yet the word " anti- 
cipation " need not be used in clauses of this sort, nor is any 
particular form of expression necessary.^ Like the separate 
use itself, this clause of restraint on anticipation exists only 
in the marriage state ; it does not prevent or interfere with the 
receipt of regular income ; and property vested in a single 

1 Hodgden v. Hodgden, 4 CI. & Fin. Hug. & Wife, 312 ; Peachey Mar. Settl. 
32.3, reversing tiie decree of the court 284. Nor can she join her husband in 
^elovv. a power of attorney to receive or sue 

2 See Schoul. Hus. & Wife, §§ 160- for moneys tied up by this clause. 
162 ; supra, § 85, as to the wife's equity Kenrick v. Wood, L. R. 9 Eq. 333. 

to a settlement. 6 lb. 

3 Miss Watson's Case. See Pybus ^ See Pybus v. Smith, 3 Bro. C. C. 
V. Smith, 3 Bro. C. C. 340, n. This 340 ; -Jodrell v. Jodrell, 9 Beav. 59. 
doctrine was afterwards affirmed in ^ pgj. j^ord Cranworth, In re Ross's 
Jackson v. Hobhouse, 2 Mer. 487, by Trust, 1 Sim. 199 ; Doolan v. Blake, 3 
Lord Eldon. Ir. Ch. 349; Peachey Mar. Settl. 287; 

* See Macq. Hus. & Wife, 312. Tulletti;. Armstrong, 1 Beav. 1 ; Steed- 

5 Baggett V. Meux, 1 Phil. 627, per man v. Poole, 6 Hare, 193 ; Schoul. 
Lord Lyndhurst; 1 Coll 138; Macq. Hus. & Wife, § 202, and cases cited. 

165 



§ 111 THE DOMESTIC BELATIONS. [PAET II. 

woman she may dispose of absolutely, despite such limitation, 
so long as she remains unmarried ; but upon her coverture, 
while retaining such property, the separate use and the 
restraint upon anticipation attach and become effective to- 
gether, cease together upon her widowhood, and revive to- 
gether upon her remarriage.^ 

§ 111. Separate Use in Common-Law Courts; English Married 
"Womens' Act. — Although the wife's separate use is the crea- 
ture of equity, and specially consigned to its watchful keep- 
ing, courts of law will sometimes afford it protection. This 
seems to be, however, only in cases where a trustee is inter- 
posed to hold the legal estate ; for since the common-law 
courts maintain their own maxims, there should be some 
person designated to hold the fund for the wife ; and such 
person will be considered as the legal owner so as to save the 
property from attachment and sale for the husband's debts.^ 

Under a recent act of 1870 important changes are made 
with the view of creating a statutory separate estate in 
married women ; these, however, do not as yet attract much 
judicial comment.^ 

1 Tullett V. Armstrong, 1 Beav. 1 ; certain formalities, her property in the 

4 Myl. & Cr. 377 ; Schoul. Hus. &"Wife, funds, joint-stock companies, &c. ; per- 

§ 202 ; Clarke v. Jaques, 1 Beav. 36 ; sonal property coming to her not ex- 

Dixon V. Dixon, 1 Beav. 40. ceeding £200 ; rents and profits of her 

- See Izod v. Lamb, 1 Cr. & J. 35; freehold propert}' ; policies of insurance 

Davison v. Atkinson, 5 T. R. 434 ; for benefit of wife (trusts for benefit of 

Dean v. Brown, 2 Car. & P. 62 ; Macq. wife and children being also permitted). 

Hus. & Wife, 291. This moderate act is doubtless the 

3 See Act 33 & 34 Vict. c. 93(1870); result of influences such as were first 

Queen v. Carnatic R. R. Co., L. R. 8 Q. manifested in the United States. The 

B. 299. This act declares that wages American legislation on this subject 

and earnings of a married woman shall long antedates the English. Other 

be her separate property ; also, her provisions are found in this act, whose 

deposits in savings banks (with a pro- appropriate consideration belongs to a 

viso); also, upon the observance of later chapter. 

166 



CHAP. IX.] wife's separate PROPERTY. § 112 



CHAPTER IX. 

THE WIEE's separate PROPERTY ; AMERICAN" DOCTRINE. 

§ 112. Early American Rule. — The doctrine of the wife's 
separate estate is one of peculiar growth and development in 
this country, though doubtless originating in the maxims of 
the English chancery, and deriving much of its strength from 
the splendid accomplishments of Langdale, Thurlow, and 
Eldon, in their own land. What such men and their succes- 
sors effected b}^ judicial policy we have carried into our 
statutes ; nay, we have gone further. In England the equita- 
ble rights of married women are the triumph of the bench , 
with us the early efforts of the bench have been eclipsed by 
the later achievements of the legislature, and the judge fol- 
lows the lawgiver to restrain rather than enlarge. There, in 
historical sequence, it was proper to study first the equitable 
doctrine of separate property ; here the statutory doctrine 
may well take precedence. 

When this country was first settled, the separate use was 
but little understood in England. Its development there 
was gradual, and its final establishment of a later date. Our 
ancestors brought over the common law with them ; but for 
equity they had little respect. True, it cannot be said that, 
by the jurisprudence of a single State, property bestowed 
upon a married woman to her separate use, free from the 
control and interference of her husband, would remain subject, 
notwithstanding, to his marital dominion ; but prior to the 
late married women's acts there were, in many States, no 
judicial precedents to combat such an assumption. That 
such trusts might be created was not denied ; but whether 
there were courts with authority to enforce them appeared 

167 



§ 112 THE DOMESTIC RELATIONS. [PART II. 

frequently doubtful.^ In the New England States scarcely a 
vestige of the separate use was to be found. ^ New York, 
with such eminent chancellors as Kent and Walworth, took 
the lead in building up an equity system parallel with that of 
England ; and in the reports of this State are to be found 
most of the leading cases and the ablest discussions of what 
may be termed American chancery doctrines. New Jersey 
recognized the separate use, and her chancery court exercised 
liberal powers. In Pennsylvania the doctrine was recognized 
to some extent. The courts of Maryland, Virginia, and the 
Southern States generally, had frequent occasion to apply the 
separate-use doctrine ; none more so than those of North and 
South Carolina. And it may be remarked that the aristo- 
cratic element of society in that section of the country, also 
a prevalent disposition for family entails, marriage settle- 
ments, and fetters upon the transmission of landed property, 
aided much in developing therein the English chancery sys- 
tem. So was it in Kentucky and Tennessee, States founded 
upon like institutions. But as to Ohio, Indiana, Illinois, and 
the other States erected from what was formerly known as 
the Northwest Territory, society was modelled more after 
New England, and we find no clear recognition of the wife's 
equitable separate use. Louisiana, and such contiguous States 
as were originally governed by French and Spanish laws had 
more or less of the civil or community system ; and to these 
States English equity maxims had at best only a limited 
application. Such, then, is the wife's separate use, viewed 
in the light of judicial precedents, as known in the United 

'■ It is true that the general recogni- cially favored chancery jurisprudence, 

tion here of the wife's separate use lias The want of a general recognition of 

been presumed by our text-writers, the wife's separate use, as unfolded in 

See 2 Kent Com. 162 ; Reeve Dom England, aids in explaining the curious 

Rel. 162 , 2 Story Eq. Juris. § 1378 et fact that our States were legislated 

seq. We confine our observation to into a system which the English clian- 

judicial precedents. What Chancellor eery had felt competent to rear un- 

Kent has to say on the American equity aided 

doctrines in his work must be taken by - Jones v. iEtna Ins. Co., 14 Conn, 

the general student with some qiialifi- 501, intimated that the married woman 

cations, inasmuch as the learned writer could not, in Connecticut, be the inde- 

draws largely upon his judicial opin- pendent owner of property. But see 

ions rendered in a State which espe Pinney v. Fellows 15 Vt. 525 (1843). 

168 



CHAP. IX.] wife's separate PROPERTY. § 113 

States until very nearly the middle of the nineteenth cen- 
tury.i 

But where recognized and enforced at all, the strict Am- 
erican rule Avas borrowed from that of England, and such, 
too, has been the later development, as we shall show here- 
after.2 

§ 113. The Late Married Women's Acts; Social Revolution. — 
The wife's separate use, as an American system, or rather as 
the system of certain American States, had thus progressed 
when our local legislatures took the whole subject actively in 
hand. The American equity courts had followed the English 
precedents pretty closely, but without displaying the same 
vigor and boldness. None of our reported decisions on the 
subject of the wife's equitable separate property had attracted 
popular attention or served to bring out the discussion of 
strong leading principles, though covering a period of sixty 
years down to nearly the middle of the present century. 
During the twenty-five years preceding 1848, a change in 
public opinion had been gradually wrought in this country 
and in England, though with us more rapidly than abroad. 
The married woman of America turned to the legislature 
rather than the courts of her State for a more complete mari- 
tal independence, for the right to control her own property, 
for freedom from the burdens of coverture. In shaping 
popular sentiment, doubtless, the annexation of territory 
lately governed b}^ the principles of Roman law had con- 
siderable influence, particularly in the States adjacent to 
Louisiana ; still more in a national sense did our rapid ad- 
vancement as a self-governed nation, and the spread of public 
education, of independence in^ life and manners, and of equal 
social intercourse of the sexes, help on the new reform. The 

1 See U. S. Eq. Dig. Hus. & Wife, ren u. Haley, 1 S. & M. CIi. 647; Ham- 

12 ; Reade v . Livingston, 3 Jolins. Ch. ilton v. Bishop, 8 Yerg. 33 ; Griffith v. 

481; Meth. Ep. Church v. Jaques, 1 Griffith, 5 B. Monr. 113; McKennan u. 

Johns. Ch. 65; Rogers v. Rogers, 4 Pliillips, 6 Whart. 571 ; Gray i-. Crook, 

Paige, 516 ; Vernon v. Marsh, 2 Green 12 Gill & J. 236 ; Howard v. Menifee, 

Ch. 502 ; Steel r. Steel, 1 Ired. Eq. 452 ; 5 Pike, 668. 

Jackson v. McAliley, Speers Eq. 303 ; ^ See post, as to equitable separate 

Boykin v. Ciples, 2 Hill Ch. 200, 204 ; property of married women, in tliis 

Hunt V. Booth, 1 Freem. Ch. 215 ; War- chapter. 

169 



§ 113 THE DOMESTIC RELATIONS. [PAET H. 

year 1848 saw a wondrous revolution effected in the foremost 
States of this Union as to the property rights of married 
women ; and this revolution has since extended to every sec- 
tion of the country. The influence of these changes has also 
been felt abroad ; and a like reform was pressed in the Eng- 
lish Parliament about 1870, whose immediate result was the 
statute to wliicli we have already alluded.^ 

In 1821 the legislature of Maine had authorized the wife, 
when deserted by her husband, to sue, make contracts, 
and convey real estate as if unmarried, prescribing the 
mode of procedure in such cases. A like law previously 
existed in Massachusetts.^ These appear to have been the 
earliest of the married women's acts, properly so called : the 
first-fruits of the modern agitation on woman's rights. The 
example of Massachusetts and Maine in this respect was 
soon imitated elsewhere. New Hampshire, Vermont, Ten- 
nessee, Kentucky, and Michigan, all passed important laws of 
a similar character before 1850. The independence of mar- 
ried women whose husbands were convicts, runaways, and 
profligates became thus the first point gained in the new 
system. In Massachusetts and Rhode Island the wife's sep- 
arate use in life-insurance contracts for her benefit was an 
object of special solicitude ; then, in 1845, the former State 
turned its attention further to a public recognition of mar- 
riage settlements and trusts for the wife's separate benefit, 
extending the equity jurisdiction of its courts for that pur- 
pose.^ The right of a married woman to dispose of her 
property by will was legalized in Illinois, Pennsylvania, 
Michigan, and Connecticut about the same time. In Con- 
necticut, Ohio, Indiana, and Missouri, the first reforms appear 
to have been directed towards exempting the wife's property 



1 See 3 Juridical Society Papers Rhode Island in 1844 made similar 
(1870), part 17 ; Act 33 & 34 Vict. c. enactments. Tliese are indications of 
93, 1870, under § 111 supra. what the text has already stated; that 

2 See Rev. Sts. Maine (1840), p. trusts for separate use and equity ju- 
841; Rev. Sts. Mass. (1836), pp. 485, risdiction on the wife's behalf were 
487. little recognized in that section when 

3 A New Hampshire act in 1846 cop- the married women's agitation com- 
ied these provisions ; and a statute of menced in the United States. 

170 



CHAP. IX.] wife's &EPAEATE PKOPEETY. § 113 

from liability for her husband's debts, rather than giving her 
a complete dominion over it.^ 

The Roman principle of an independent estate in the wife, 
as modified by the more modern French and Sj^anish com- 
munity law, prevailed in Louisiana at the time of its admis- 
sion into the Union ; and like traces appear in the legislation 
of Florida, Arkansas, Texas, and other adjacent States for- 
merly under French and Spanish rule. So was the doctrine 
of separate estate promulgated by Mississippi statute as early 
as 1839.2 And in other Southern States, as Alabama and 
North Carolina, where chancery jurisprudence was well 
established, appeared laws investing the courts with larger 
powers in matters of this sort.^ Alabama and Mississippi 
appear to have first postponed the husband's liability for 
his wife's antenuptial debts to her separate estate.^ 

But the sweeping changes effected by the legislature of 
New York in 1848 deserve more than a passing notice. The 
debates of the constitutional convention of that State in 1816 
•evinced the growing desire for a radical reform in the prop- 
erty rights of married women ; and the advocates of the 
movement, failing in their attempt to secure an article of 
amendment to the State constitution on their behalf, next 
addressed themselves to the legislature, and with success. 
On the 7th of April, 1848, was enacted a law " for the more 
effectual protection of married women," which provided that 
the real and personal property of any female already married, 
or who may hereafter marry, which she shall own at the time 
of marriage, and the rents, issues and profits thereof, shall 
not be subject to the disposal of her husband, nor be liable 
for his debts, and shall continue her sole and separate prop- 
erty as if she were a single female ; and that any married fe- 
male may lawfully receive and hold property in like manner 

1 See 2 Bright Hus. & Wife. Am. settled territory surrounding it. The 
ed. 1850, p. 627 et seq., where married codes of these States were all disfig- 
wome«'s acts are cited by Mr. Lock- ured by " chattel " provisions, which 
wood; 2 Kent Com. 130, n. deti-acted much from the merits of a 

2 See 2 Bright, ib. The influence of policy otherwise humane to tlie wife. 
a large comrrercial city like New Or- 3 2 Bright, ib. 

leans was doubtless felt in the sparsely < Ib. (1S46). 

171 



§113 



THE DOMESTIC RELATIONS. 



[part n. 



from any person other than her husband, whether by gift, 
grant, devise, or bequest. This statute, passed at such a time 
by the foremost State in the Union, — a State thoroughly 
northern in its institutions, while the recognized champion of 
chancery principles, — could not fail to make a deep national 
impression.^ A parallel movement had meanwhile progressed 
in Pennsylvania ; and in that State an act of the legislature, 
dated only four days later, conferred substantially the same 
rights of property upon married women, though expressed in 
different language.^ 

From this time forth the revolution became rapid, and has 
since extended to all the States, Virginia being the last to 
yield. And the work of legislative change still goes on. 
Scarcely a year passed between 1850 and 1870 without some 
new married women's acts added to the local statute books ;^ 



1 We give the substance rather than 
the language of this statute. See 2 
Bright Hus. & Wife, Am. ed. 1850, 
Lockvvood's note, 581 et seq. This stat- 
ute was afterwards considerably modi- 
fied by acts of 1849, c. 375, and 18G0, c. 
90, § 1. 

2 Bright, ib., p. 648; Laws Penn. 
1848, pp. 530-538. It should be said 
that both Maine and Michigan had en- 
acted laws in 1844, giving enlarged 
powers to the wife to hold and dis- 
pose of separate property, thus antici- 
pating some of tlie statutory changes 
both in New York and Pennsylvania. 
Rev. Stat. Mich. (1846) p. 340; Maine 
Statutes, March 22, 1844. 

3 The acts now in force, many of 
them perplexing, which need not here 
be detailed, will be found summarized 
to 1882 in Schoul. Hus. & Wife, Ap- 
pendix. More or less liberality is 
shown in different States in the legis- 
lative grant of separate property, but 
the tendency on the whole is to place 
the married woman on the footing 
of a feme sole in respect of property 
and kindred rights of suit and con- 
tract. 

In the Southern Law Review, vol. 6, 
p. 633, will be found an instructive arti- 

172 



cle by Professor Henry Hitchcock, com- 
menting upon marital property rights 
as defined by American statutes in 
force in 1880. Detailing the statutory . 
changes which have occurred, the 
author calls attention to the fact that 
in Connecticut, beginning with the act 
of 1845, there were eleven successive 
statutes passed at intervals during the 
twenty-one years ending in 1866. And 
see Jackson v. Hubbard, 36 Conn. 10, 
on this point. Afterward another stat- 
ute was passed in this Stale in 1869, 
and still another in 1872, and then, at 
the general revision of the statutes in 
1875, a further amendment took place. 
This is a marked, but not exceptional, 
instance of State innovations in the 
law of Husband and Wife. Between 
1850 and 1860 inclusive, notes the 
writer, the following States began their 
married women's legislation, some 
boldly, others timidly: Indiana, Mis- 
souri, New Jersey, Kansas ; Ohio, and 
lUinois followed in 1861, and other 
States successively in subsequent years. 
In 1809 Congress enacted, for the bene- 
fit of married women in the District of 
Columbia, one of the most radical laws 
on tiie subject. The last State to fall 
into line was Virginia, in 1877. 



CHAP. IX.] wife's separate PROPERTY. § 114 

and with regard to woman in general, the constant tendency 
has been to enlarge her freedom of action, and open to her 
sex pursuits hitherto closed against them. 

§ 114. Scope of Married Women's Acts ; Constitutional Points. 
— The main principles touching the acquisition of a statutory 
separate property by the wife, as an American system of 
positive law, we shall now consider as fairly as circumstances 
permit. And, first, it may be remarked in general that these 
American married women's acts are designed for woman's 
benefit, and that they do not limit, but rather extend, her 
right to beneficially hold separate property.^ Where she is 
held to be restricted by the statute at all, it is generally with 
reference to the right of disposition, and in order that others 
may not subject it to the fulfilment of her engagements.^ 
We shall presently see, moreover, in the course of our expo- 
sition, that the doctrines of an equitable separate estate in 
the wife are generally invoked at this day as furnishing a 
system available for her advantage, wherever (as rarely hap- 
pens) the statutory privileges, in any particular instance, 
prove less adequate for establishing her independent property 
relations ; the main policy of the married women's acts being 
not to supersede the wife's equitable rights, but to enlarge 
her legal status, and correct the old anomaly which left her a 
person in equity but none in law. 

These statutes are not subject to mere technical construc- 
tion, but the will of the legislature should be fairly inter- 
preted. The legislative will is not presumed to be so exerted 
as to operate retrospectively. " A retrospective statute, 
affecting and changing vested rights," observes Chancellor 
Kent, " is very generally considered in this country as 
founded on unconstitutional principles, and consequently 
inoperative and void." ^ The whole current of American 

1 Blevins v. Buck, 26 Ala. 292. tional and State constitutional provi- 

2 See Davis v. Foy, 7 S. & M. 64; sions — as, e. g., that no one shall be 
Pond r. Carpenter, 12 Minn. 430; Pip- deprived of property "without due 
pen V. "Wesson, 74 N. C. 437. The sub- process of law," and against impairing 
ject of the wife's right of disposition is the obligation of contracts — have a 
discussed in a later chapter. similar bearing. 

3 1 Kent Com. 455. Various na- 

173 



§ 114 THE DOMESTIC RELATIONS. [PAET II. 

decisions confirms tliat statement; and thus is it with our 
married women's acts, for they necessarily reduce tlie prop- 
erty rights of the husband as prevalent under the common 
law of coverture. The respective rights of a husband and 
wife, duly married, in property acquired in any State, be- 
fore fundamental law or appropriate legislation therein has 
changed the old rule, must be governed by the rules of 
the common law.^ Where a complete legal estate in the 
wife's lands has already vested in the husband, it is not 
taken away from him.^ The effect of a previous conveyance 
of land to husband and wife jointly is not changed in respect 
of survivorship.^ The wife's personal property already in 
possession or reduced to possession by the husband is his.^ 
And, to go still further, in her chases in action, or unreduced 
personalty which he is already at liberty to reduce, there is a 
valuable existing interest capable of assignment and transfer, 
— a vested right in the husband which a subsequent statute 
or State constitutional provision cannot deprive him of, ac- 
cording to the better opinion.^ 

The interest of a husband in remainder in property already 
bequeathed to his wife on the contingency of surviving a 
life tenant is held to be a vested right in such a sense that it 
cannot be taken away by a married woman's act passed before 
the contingency happens.^ And, in general, an interest vested 
in the husband, though in a certain sense contingent, which 

1 Carter v. Carter, 14 S. & M. 59; 202; Ryder v. Hiilse, 24 N. Y. 372; 
Scboul. Hus. & Wife, § 211, and cases Stearns v. Weathers, 30 Ala. 712; 
cited; Eldridge v. Preble, 34 Me. 148 ; Kirkscy r. Friend, 48 Ala. 276. Such is 
Qiiigley v. Graham, 18 Ohio St. 42 ; the rule with reference to a legacy be- 
Farrell v. Patterson, 43 111. 52 ; Coombs queathed to a wife, and taking eflfect 
V. Read, 10 Gray, 271. So, rights ac- before the passage of an act vesting all 
quired subsequently under a foreign . such property in the married woman : 
government. Dubois v. Jackson, 49 Norris ?;. Beyea, 13 N Y. 273, 288; or 
111. 40. her distributive share, accruing previ- 

2 Bouknight v. Epting, 11 S. C. 71. ously in an estate: lb.; Kidd v. Mon- 
And hence the husband's interest tague, 19 Ala. 619 ; Sperry v. Haslam, 
therein can be taken and sold on ex- 57 Ga. 412 ; or her stock, mortgages, 
ecution. lb. and incorporeal property generally. 

3 Almond v. Bonnell. 76 111. 5-36. See Schoul. IIus. & Wife, § 211, «., 
* Buchanan v. Lee, 69 Ind. 117. commenting upon Clark v. McCreary, 
5 See Dunn v. Sargent, 101 Mass. 12 S. & IM. 347, coDfra. 

339 ; Westervelt v. Gregg, 12 N. Y. e Dunn v. Sargent, 101 Mass. 336. 

174 



CELA.P. IX.] wife's separate PROPERTY. § 115 

is not a mere expectancy or bare possibility, like that of an 
heir from his living ancestor who may yet disinherit him by 
will, but is an interest already created and existing, which is 
descendible, transmissible, and capable of transfer, is not to be 
taken away by subsequent legislation in the wife's favor.^ In 
like manner the husband's vested life estate by way of curtesy 
initiate in his wife's lands cannot be taken away by legisla- 
tive enactment, anj' more than the wife's inchoate right of 
dower in her husband's lands.^ Nor can any interest which 
a husband, before the passage of the act, has in his wife's 
real estate be thus devested.^ 

In some States all these constitutional perplexities are 
obviated by legislation which embraces simply such property 
as may be held or acquired by women marrying after the 
passage of the act."^ But the married women's acts or consti- 
tutional amendments usually operate upon parties occupying 
already the conjugal relation, as the statute language shows, 
and upon those who as a fact are likely each to have married 
with some reference to the pecuniary expectations of the other. 
To protect a husband's interests to any such extent, however, 
on any constitutional suggestion on his behalf, the courts 
appear uniformly to decline ; for, as it has been observed, the 
marriage contract does not imply that the husband shall have 
the same interest in the future acquisitions of the wife that 
the law gives him in the property she possesses at the time 
of the marriage, but rather that she shall have whatever inter- 
est the legislature, before she is invested with them, may 
think proper to prescribe.^ In other words, while the hus- 



1 Gray, J., in Dunn v. Sargent, 101 Prall v. Smith, 81 N. J. L. 244 ; Wytlie 
Mass. 33G; Shaw, C. J., in Gardner v. v. Smith, 4 Sawyer, 17. 

Hooper, 3 Gray, 398. Tlie increase of domestic animals 

2 Rose I'. Sanderson, 38 111. 247 ; purchased by the husband before the 
Dayton y. Dusenbury, 25 N.J. Eq. 110. passage of the married woman's act 
Rents of the wife's land, too, accruing Ibelongs to him, and not to his wife, 
before her death and prior to the new Hazelbaker r. Goodfellow, 64 111. 238. 
constitutional provision as to married * See Maclay v. Love, 25 Cal. 367. 
women's rights, go with the curtesy, Cf. Eugh v. Ottenheimer, G Oreg. 231. 
and not to the wife's heirs. Matthews 5 Sleight v. Read, 18 Barb, 159; 
V. Copeland, 79 N. C. 493. Southard v. Plummer, 36 Me. 64. 

s Burson's Appeal, 22 Penn. St. 164 ; 

175 



§ 115 THE DOMESTIC RELATIONS. [PART II. 

band's vested rights arising under a marriage cannot be 
constitutionally disturbed by an alteration of the law, his 
mere expectancy, or the possibility of some future acquisition 
by right of marriage, is subject to any change which the legis- 
lature may choose to make prior to the vesting of a right in 
the husband.^ And whatever a married woman may have 
acquired subsequently to the passage of an appropriate act 
by gift, devise, bequest, and so on, becomes her statutory 
separate estate, and all parties concerned must govern them- 
selves accordingly. 2 

A corresponding rule of constitutional limitations applies 
to the rights and liabilities of the wife under these acts, as to 
her title by gift or purchase, and as to her dominion over her 
property generally,'^ of which we are to speak hereafter. 

§ 115. Married Women's Acts as to Antenuptial Property 
and Acquisitions from Third Persons. — Our married women's 
codes fairly correspond in permitting the wife (subject to con- 
stitutional limitations) to hold, in her sole and separate right, 
all the property, real or personal, which she had at the time 
of marriage, or has acquired thereafter from any person 
other than her husband, by gift, grant, devise, or bequest. 
Real estate thus held or acquired is regarded, not as land of 
which the husband enjoys the beneficial use, but as her sepa- 
rate land. Leasehold property may be thus held and enjoyed 
by the wife.^ Her personal property, whether in possession 
or lying in action, is her own, provided the statute descrip- 
tion be fulfilled. A married woman, transferring stock after 
marriage from her maiden to her married name, may retain it 
as her separate property.'^ Notes, bonds, or other evidences 
of debt, and incorporeal property,*^ pass to her as well as 

1 Cooley Const. Limitations, 360- Lanahan, 58 Me. 478. See, further, 
362 ; Holliday v. McMillan, 79 N. C. Schoul. Hus. & Wife, § 213. 

315 ; Gray, J., in Dunn r. Sargent, 101 * Vandevoort v. Gould, 36 N. Y. 

Mass. 336 ; Hill v. Chambers, 30 Mich. 639 ; Prevot v. Lawrence, 51 N. Y. 219. 

422. As to land damages and equity to land, 

2 Cherokee Lodge v. White, G3 see State v. Hulick, 33 N. J. 307; 
Ga. 742; Nevius v. Gourley, 95 111. Sharpless v. West Chester, 1 Grant, 
206. 257; Prout i'. Hoge, 57 Ala. 28. 

3 Bryant v. Merrill, 55 Me. 515; 5 Mnson r. Fuller, 36 Conn. 160. 
Clark V. Clark, 20 Ohio St. 128; Lee v. 6 Selden v. Bank, G9 Penn. St. 424. 

176 



CHAP. IX.] wife's separate PROPERTY. § IH 

corporeal property ; animate as well as inanimate property ; ^ 
money, which of course is personal property.^ 

§116. Change of Investment; Increase and Profits. — Prop- 
erty acquired by exchange for the wife's statutory property 
is presumably her separate property likewise, as where one 
horse is exchanged for another.^ And since the income of her 
separate fund is hers, property purchased with her savings 
from interest arising out of her separate funds belongs to her 
as her separate property.* Upon a sale and exchange of the 
wife's separate, as contrasted with her general,, lands, the pro- 
ceeds belong to the wife.'^ And where her realty, as in parti- 
tion proceedings, is converted into money, the proceeds 
stand in lieu of the real estate for her benefit.*^ Equity 
comes in aid of these principles, where statutory remedies are 
inadequate, and indeed of numerous kindred rules under the 
married women's acts. 

The natural increase and profits of the wife's statutory 
separate property, including the progeny of her separate 
domestic animals, and the rents of her separate lands or the 
crops, are usually to be construed hers and at her disposal 
during marriage, as well as the property which produced the 
increase and profits.^ If it were rightly held otherwise, this 
would be on some construction that the wife had, by her 
acts and conduct, acquiesced in her husband's assumption of 
the ownership.^ In short, all the product and increase of the 
original property will become the wife's as long as she can 
follow and identify it,^ though expenditure of income for 
authorized family purposes may well be presumed. ^'^ 

§ 117. Methods of Transfer from Third Parties under these 
Acts. — Where the property is such as can pass without a 

1 Gans V. Williams, 62 Ala. 41. Perry, 70 Ind. 501. But as to products 

2 Mitchell V. Mitchell, 85 Miss. 114. of the land occupied by the family, cf. 

3 Pike V. Baker, 53 111. 163. Moreland v. Myall, 14 Bush, 474 ; Hill 
* Merritt v. Lyon, 3 Barb. 110. v. Chambers, 30 Mich. 422. 

5 Brevard v. Jones, 50 Ala. 221. ^ j^^^^ g^g peculiar statute construed 

6 Nissley v. Heisey, 78 Penn. St. in Chambers v. Richardson, 57 Ala 85. 
418; Rice 17. Hoffman, 35 Md. 344. 9 Holcomb r. Meadville Savings 

7 Williams v. McGrade, 13 Minn. Bank, 92 Penn. St. 338. 

46; Hanson v. Millett, 55 Me. 184; lo See Chambers v. Ricliardson, 57 
Gans V. Williams, 62 Ala. 41 ; Hutch- Ala. 85. 
ins V. Colby, 43 N. H. 159; Stout v. 

12 177 



§ 118 THE DOMESTIC RELATIONS. [PART II. 

written transfer or conveyance, a gift or sale to the wife, of 
statutory separate property, may be by parol ; ^ although, of 
course, all proof must consist with the idea that delivery is 
for her sole and separate use, and not so as to admit the 
rights of her husband.^ Where a conveyance or other writ- 
ten instrument is needful, the expression must likewise con- 
form to the legislative intent ; and even where the language 
of the statute is broad enough to dispense with such phrases 
as " sole and separate use," the wife's only safety consists in 
having her name used as that of grantee or transferee, instead 
of the husband's.^ Wliere it comes to an expression of sepa- 
rate use, under some instrument made on the wife's behalf, 
an equitable separate use, rather than a statutory separate 
use, may be said to have been created ; though authorities 
style it under some local acts as a statutory separate 
estate.* 

§ 118. Acquisitions from Husband not so much Favored. — 
But as concerns acquisitions of the wife from her husband, 
the married women's acts by no means concur in making this 
her statutory separate estate, as they do where the acquisi- 
tion is derived from some third party. Some local legisla- 
tures, to be sure, have gone as far as this, but by no means 
the greater number.^ Hence we may defer the discussion of 
earnings, pin-money, postnuptial settlements, and gifts from 
husband to wife until later chapters of this treatise are 
reached, when the equitable doctrine will be considered in 
the same connection. A title to separate statutory property 
cannot be vested in the wife on her husband's credit, where 



1 Tinsley v. Roll, 2 Met. (K)'.) 509. ■* A conveyance of lands in Alaba- 

2 Walton V. Broaddus, 6 Bush, ma to a married woman, " to have and 
328. to hold to the sole and proper use, ben- 



3 Pepper v. Lee, 53 Ala. 33 
Slaughter v. Glenn, 98 U. S. Supr. 242 
Robinson v. O'Neal, 56 Ala. 541 



efit, and behoof of her, her heirs and as- 
signs for ever," vests in her, under the 
laws of tliat State, a statutory separate 



Campbell v. Galbreath, 12 Bush, 459. estate. Lippincott v. Mitchell, 94 U. S. 

Under the more sweeping local statutes Supr. 767. And see Swain y. Duane, 

a conveyance to a married woman need 48 Cal. 358; Evans f . Nealis, 69 Ind. 

not state that she is to hold it to her 148. 

separate use. Sims v. Rickets, 35 Ind. 5 gge Towle v. Towle, 114 ilass. 

181. 1G7 ; Jenkins v. Flinn, 37 Ind. .349. 

178 



CHAP. IX.] wife's separate PROPERTY. § 118 

the statute only recognizes her right to acquire from third 
persons, any more than it coukl by his money.^ And such is 
the temptation to making colorable transfers to one's wife in 
fraud of creditors, that in controversies over title, where the 
legislation discourages acquisitions from the husband, the 
wife, as against the husband and his creditors and representa- 
tives, has been held quite strictly to her proofs of acquisition 
from a person other than her husband,^ unless, at all events, 
there are writings which run so as suitably to give her the 
the legal title instead.^ 

Where a husband purchases land or personalty with his 
own money, and conveys or transfers it to his wife, through 
a trustee or otherwise, the question becomes ordinarily one of 
postnuptial settlement or gift, with equitable rules such as 
we shall consider hereafter; though sometimes the married 
women's act is broad enough in scope to confer the right of 
separate property acquisition, as such, from a husband, as 
well as from third persons. If, on either theory, the title 
vests in the wife, as of her separate right, the proceeds there- 
of, or the specific re-investment, is the wife's also. Where 
the husband appropriates such proceeds or takes other prop- 
erty in his own name, equity and modern statutes between 
them may preserve the wife's rights ; she may, in the usual 
manner, follow her title into the new property, or else regard 
her trustee as remiss in duty and indebted to her. 

Again, the wife is permitted to bestow her statutory sepa- 
rate property upon her husband, or waive her statutory 
rights to a considerable extent. Thus, it is held that money 
used by the husband with the wife's knowledge and consent, 
in payment of ordinary household expenses, and without any 
agreement for repayment to her on his part, cannot be recov- 
ered from his estate afterwards.* The husband may reduce 
to possession his wife's outstanding personals in action ; but 
out of regard to her statutory rights, the doctrine now 

1 Hopkins v. Carey, 23 Miss. 54; ' Lyon v. Green Bay R., 42 "Wis. 
Worth ;;. York, 13 Ired. 206. 548. 

2 See Reeves v. Webster, 71 III. 807 ; * Cartwright v. Cartwright, .53 Iowa, 
Johnson v. Johnson, 72 III. 489. 57. 

179 



§ 119 THE DOMESTIC RELATIONS. [PART II. 

becomes of somewhat novel application, and evidence of the 
wife's consent is properly required in many States before the 
husband's act of appropriation shall be considered complete. 
For \yhile she may bestow her goods and chattels upon him, 
under suitable circumstances, he can no longer go to work, 
as he could at the common law, and make his title complete 
without reference to her wishes.^ Nor has the debtor or 
custodian of the incorporeal property, or the executor or ad- 
ministrator who settles the estate in which the married 
woman may have a legacy or distributive share accruing to 
her, the right to recognize the husband as entitled to her 
exclusion, or to pay over to him on his sole and unauthorized 
receipt.^ 

§ 119. Husband's Control ; Mixing "Wife's Property or Keep- 
ing it Distinct. — The greatest source of perplexity, in truth, 
in these married women's acts, arises out of the effort at elimi- 
nation of the husband's control in the wife's statutory prop- 
erty ; for here the safeguards usual in equitable trusts are 
wanting. Nor are States agreed in the course to pursue, 
since the policy in one is to emancipate the wife from prop- 
erty restraints, while another grudges the change as tending 
to strip the husband of his matrimonial rights. A married 
woman, in order to preserve her separate property, should 
keep it distinct from that of her husband ; and especially does 
the rule hold true in States where presumptions are against 
her exclusive right. Thus it is held that if a married woman 
willingly allows what she might have retained as her sepa- 
rate property to be so mixed into a common mass with that 
of the husband as to be undistinguishable, or acquiesces in 
leaving it so, it must, as to her husband's creditors, be treated 
as relinquished to him .3 So, too, land or other property 

1 Vreeland v. Vreeland, 1 C. E. and reducing to possession his wife's 
Green, 512 ; King v. Gottsclialk, 21 chosex in action. Clark v. Bank of Mis- 
Iowa, 512; Haswell v. Hill, 47 N. H. souri, 47 Mo. 17. 
407. 3 Glover v. Alcott, 11 Mich. 470; 

- Alder, if the husband's receipt Gross v. Reddy, 45 Penn. St. 406; 
was authorized by the wife. Hoben- Kelly v. Drew, 12 Allen. 107 ; Cham- 
sack V. Hallman, 17 Penn. St. 154. bers y. Richardson, 57 Ala. 85 ; Humes 
Some of the local statutes are held not v. Scruggs, 94 U. S. Supr. 22. 
to restrain die husband from collecting 

180 



CHAP. IX.] wife's separate PROPERTY. § 119 

bought by the husband with his wife's money, but in his own 
name, and without any agreement that the purchase shall be 
to her separate use, or the title taken in her name, will not, 
as a rule, be treated as her separate property,^ If certain 
property be purchased in part from her own funds, and in 
part from her husband's, whatever the form of the invest- 
ment, her title extends only to the amount of her in vest- 
men t.^ 

On the other hand, where the husband has kept his wife's 
funds distinct from his, though changing investments from 
time to time, and preserved the ear-marks, so to speak, her 
right to claim the property from his estate, upon surviving 
him, has been strongly asserted.^ 

So discordant is our married women's legislation, however, 
that in New York, where presumptions lean strongly to the 
wife's side, it is held that if household furniture belonging to a 
wife, and acquired from her father, is, with her consent, taken 
to the common dwelling, mingled with the husband's furni- 
ture, and used therewith for the common household purposes, 
it does not thereby become her husband's property, but the 
title remains in her.^ This doctrine, however, is applied as 
between the wife or her assignee, and the husband himself;^ 
and as to bona fide third parties for value without notice, the 
assertion of a wife's title as against those who have given 
credit to a husband in possession requires the nicest discrim- 
ination on the part of the court. Property bought by a hus- 
band with money belonging to his wife will in general be 
presumed to be his own until the contrary is shown ; ^ and 
even property bought by the husband with money from the 
wife, which is placed in his hands for such investment in his 

1 Kid well V. Kirkpatrick, 70 Mo. 214 » Fowler v. Rice, 31 Ind. 358; Rich- 

2 Hopkins v. Carey, 23 Miss. 54 ; ardson v. Merrill, 32 Vt. 27 ; McCowau 
Worth V. York, 13 Ired. 206; Haines v. Donaldson, 128 Mass. 169; Sclioul. 
V. Haines, 54 111. 74. Under Maine Hus. & Wife, § 219, and numerous 
statutes, property conveyed to a mar- cases cited. 

ried woman, but wholly or partly paid * Fitch v. Rathbun, 61 N. Y. 579. 

for by her husband, may be reached 5 lb. 

by the husband's creditors to the ex- ^ Moye v. Waters, 51 Ga. 13. But 

tent of his interest. Call v. Perkins, 65 see next c. as to his agency. 

Me. 439. 

181 



§ 120 THE DOMESTIC RELATIONS. [PAKT II. 

name and for his benefit, is liable to seizure for his debts, 
notwithstanding she borrowed the money. ^ A wife may 
have an equitable right to pursue her funds invested by her 
husband, while, until this right is asserted, the husband retains 
a legal title of which a bona fide transferee for value may per- 
haps avail himself by way of a countervailing equity .^ 

§ 120. Husband as "Wife's Trustee in this Connection. — The 
husband, while the marriage relation lasts, may hence become 
bound as trustee of his wife's statutory separate estate, not 
only by express appointment, but through implication, as 
under the equity rule.^ In certain States, such as Connec- 
ticut and Alabama, the husband is specially designated by 
statute as his wife's trustee,* — a peculiarity of legislation 
which is attended with peculiar consequences as to the legal 
title rff such property. And since the opportunities afforded 
him for mixing up her property with his are very great, in 
the present raw age of our married women's legislation, we 
often find her, upon surviving him, a general creditor against 
his estate, or the claimant of a trust fund which cannot 
easily be identified.^ Unlike the wife's separate estate in 
equity, the separate property of a married woman under 
American statutes seems sometimes to retain its qualities 
after her death, so that her administrator often claims it 
against her surviving husband.^ It would appear that in 
general the agency of the husband in selling, exchanging, 
or managing his wife's separate statutory property ma}^ be 
previously conferred or ratified afterwards by the wife.'^ 

i Nelson v. Smith, 64 III. .394. gard to it. Williams v. King, 43 Conn. 

2 See Holly v. Flournoy, 54 Ala. 99. 569. 

3 "Walter v. Walter, 48 Mo. 140 ; The husband may sue, " as trustee 
Hall V. Creswell, 46 Ala. 460; Wood v. of" his wife, to recover rents, income. 
Wood, 83 N. Y. 575; Patten v. Patten, and profits of his wife's statutory sep- 
75 111. 446. arate estate. Bentley v. Simmons, 51 

■• Sherwood v. Sherwood, 32 Conn. Ala. 165. 

1 ; Marsh v. Marsh, 43 Ala. 677. The 5 Martin v. Curd, 1 Bush, 327 ; 

personal property of a married woman, Hause v. Gilger, 52 Penn. St. 412; 

which is by the statute vested in the Fowler v. Rice, 31 Ind. 258. 

husband as her trustee, is not in legal ^ Leland v. Whitaker, 23 Mich, 

strictness her sole and separate estate, 324. 

unless the husband transfers it to the '' Lichtenberger v. Graham, 50 Ind. 

wife or relinquishes his right with re- 288. See next c. 

182 



CHAP. XI.] wife's separate pkopeety. § 120 a 

§ 120 rt. Presumptions as to Separate Property under these 
Acts. — We must here bear in mind tliat the married women's 
acts have reference, not to the wife's proj)erty in the mass, 
but to property suitably acquired by her in certain instances 
by way of exception to the old rule of coverture. Broad, 
therefore, as they may often appear, these statutes are con- 
siderably restrained by judicial construction and the applica- 
tion of presumptions. In Massachusetts, Maine, California, 
Wisconsin, Illinois, and other States, the presumption is still, 
in absence of suitable words or circumstances manifesting an 
intent on the part of those interested to claim the benefits of 
the statute, that a married woman's property belongs to her 
husband as at the common law ; and his possession of the prop- 
erty, undisputed and unexplained, or even a visible possession 
thereof in connection with his wife, gives him the marital 
dominion.! In Pennsylvania the courts were at first disposed 
to rule otherwise, but they, too, have finally settled upon the 
same presumption.^ On the other hand, the New York 
courts approve the new system to its widest extent, thus far ; 
and it would appear that married women in that State are 
well-nigh emancipated altogether from marital restraints, so 
far as concerns their property, while the husband's own rights 
therein are exceedingly precarious.^ To ascertain as a fact 
whether the ownership be in wife or husband, evidence of 
how the matter was understood and treated between the 
spouses may be quite essential ; ■* for a sort of joint possession 

1 Eldridge v. Preble, 34 Me. 148; 33 Penn. St. 525; Gault v. Saffin, 44 
Smith V. Heniy, 35 Miss. 369; Alver- Penn. St. 307; with Goodyear v. Euni- 
son V. Jones, 10 Cal. 9 ; Farrell v. Pat- baugh, 13 Penn. St. 480. And see 
terson, 43 III. 52; Reeves v. Webster, Curry v. Bott, 53 Penn. St. 400. Un- 
71 111. 307 ; Stanton v. Kirsch, G Wis. der tbe law of Tennessee, direct gifts to 
338 ; Smith v. Hewett, 13 Iowa, 94. the wife enure to the husband, unless 
Co)i<)-fl, Johnson r. Runyan, 21 Ind. 115; the separate estate intention is clearly 
Stewart v. Ball, 33 Mo. 154. Wliile a expressed. Ewing v. Helm, 2 Tenn. 
husband and wife both live on her land Ch. 368. 

held as general estate, the possession ■* Peters v. Fowler, 41 Barb. 467 ; 

of the products is presumptively his. Knapp v. Smith, 27 N. Y. 277. 
Moreland v. Myall, 14 Bush, 474. But * Hill v. Chambers, 30 Mich. 422. 

cf. Hill V. Chambers, 30 Mich. 422. In this State the obvious inclination is 

2 Cf. Camber v. Gamber, 18 Penn. to determine, not by presumptions or 
St. 363; Winter v. Walter, 37 Penn. inferences, but upon the facts, lb. 
St. 157 ; Bear's Administrator v. Bear, 

183 



122 



THE DOMESTIC DELATIONS. 



[part II. 



Oil their part is often the practical situation of tlie case.^ 
And thus does one State regard the wife's right to her own 
acquisitions as the rule, and another as the exception. 

§121. Schedule or Inventory of Wife's Property. — The 
requirement in a few States is that the wife's separate prop- 
erty shall be scheduled or inventoried in order to receive 
legal protection for her separate benefit.^ 

§ 122. Statutory and Equitable Separate Property. — In New 
York and Mississippi it is held that the married women's act 
does not oust the original jurisdiction of courts of equity in 
cases affecting the separate estates of married women. ^ 



^ Ganiber v. Gamber, 18 Penn. St. 
363. And see Kenney v. Good, 21 Penn. 
St. 349. As the rule is usually ex- 
pounded, presumptions bear heavily 
against the wife in contests of title, but 
more especially where the rights of a 
husband's creditors are affected by the 
decision. " Between strangers," it is 
observed in a Pennsylvania case, " open, 
visible, notorious, and exclusive posses- 
sion is the test of title in all cases 
wliere the rights of creditors are in- 
volved. But this is not possible with 
reference to the personal goods of a 
married woman. She cannot have or 
use her property exclusively, unless 
she lives apart from her husband. It 
was not the intention of the legislature 
to compel a separation in order to save 
the wife's rights ; but if the rule of 
exclusive possession were adopted, the 
statute would be inoperative as long 
as they live together. But this shows 
how necessary it is to demand the 
clearest proof of the wife's original 
right." Gamber i'. Gamber, supra. 

2 Price V. Sanchez, 8 Fla. 136 ; 
Humphries v. Harrison, 30 Ark. 79 ; 
Selover v. Conmiercial Co., 7 Cal. 2GG ; 
Schoul. Hus. & Wife, § 222. This reg- 
istry law, after having called for con- 
siderable construction in the courts, 
appears to have finally been repealed 
in Iowa. Schmidt v. Iloltz, 44 Iowa, 
448. 

3 Mitchell V. Otey, 23 Miss. 236 ; 
Colvin V. Currier, 22 Barb. 371 (Strong, 

184 



J., dissenting). See the recent case of 
Wood V. Wood, 83 N. Y. 575, where 
Folger, C. J., observes that the married 
women's acts, by their own operation, 
changed the wile's capacity to hold a 
separate estate as a matter of equity 
into a legal estate. So, too, in a Mich- 
igan case, it is observed that, as re- 
gards the wife's individual property, 
the married women's legislation has 
done little more than to give legal 
rights and remedies to the wile, where 
before, by settlement or contract, she 
might have established corresponding 
equitable rights and remedies. Snyder 
V. People, 26 Mich. 106. And see Claw- 
son V. Clawson, 25 Ind. 229. That 
this legislation, properly so called, does 
not profess to operate upon the fam- 
ily relation, or take from the husband 
his marital rights, except as pertain- 
ing to property, is frequently insisted 
upon. Snyder v. People, 26 Mich. 
105. 

" The estate thus assured to the 
wife," as a Pennsylvania case well 
observes, "is only analogous to the 
equitable separate estate, and is seri- 
ously modified by the fact that she has 
no trustee separate from her husband ; 
and that he, therefore, as the legal 
guardian of her rights, necessarily be- 
comes, in a large sense, her trustee, 
but without all of the law's suspicion 
of his dealing with the trust property, 
for the community of interests and 
sympathies of husband and wife for- 



CHAP. IX.] wife's separate PROPERTY. § 124 

§ 123. American Equity Doctrine; Trustee for Separate Prop- 
erty. — Doubtless the married women's acts have given a 
fresh impulse to the equitable protection of married women's 
property, which, as we have stated, had been quite sparingly 
exercised in the United States prior to the first legislative 
enactments on this subject. Where the separate use has 
been recognized and enforced at all, the strict American rule 
was always borrowed from that of England. And the latest 
cases show an increasing liberality to the wife in our courts 
of equity. Thus it has been frequently said that the wife's 
sejDarate estate requires no trustee to sustain it.^ For when 
no other trustee is interposed, the courts of chancery are 
prepared to treat the husband as such by virtue of his posses- 
sion and control of the fund.^ And one may, by his acts, 
make himself a trustee sub modo to support the wife's sepa- 
rate use.^ Even a purchaser, still more a volunteer, taking 
possession of the trust property, with a notice of the trust, 
will be made a trustee in chancery.* 

§ 124. Equity Doctrine ; Ho-w Separate Use Created. — So, 
too, an intention clearly manifested to create a separate estate 
has always been deemed necessary in our courts, in order to 
exclude the husband's marital rights. The mere intervention 
of a trustee is insufficient.^ The language employed, if 
language be necessarily relied on, must be suitable.^ And 
provisions for the sole and separate use, support, and main- 
bid tliis." Lowrie, C. J., in Walker Evans v. Knorr, 4 Rawle, 66; Taylor 
V. Rtamy, 30 Penn. St. 410, 414. v. Stone, 13 S. & M. 053; Schoul. Hus. 

i McKeniian v. Phillips, 6 WKart. & Wife, § 225. 
571; Thompson y. McKusick, 3 Humph. 6 Thus, in North Carolina, the 

631 ; Fellows v. Tann, 9 Ala. 099 ; words, " for her use," have been held 
Trenton Banking Co. v. Woodruff, 1 sufBcient to exclude the husband's do- 
Green Ch. 117. minion. Steel v. Steel, 1 Ired. Eq. 452. 

2 Boykin v. Ciples, 2 Hill Ch. 200; So, too, the words, " for the entire use, 
Hamilton w. Bishop, 8 Yerg. 33; Wal- benefit, profit, and advantage." Heath- 
lingsford v. Allen, 10 Pet. 583 ; Porter man v. Hall, 3 Ired. Eq. 414. But in 
V. Bank of Rutland, 19 Vt. 410 ; Schoul. South Carolina, the words, for " the 
Hus. & Wife, § 224, and cases cited ; use of his wife," are held insufficient. 
Pepper v. Lee, 53 Ala. 33; Richardson Tennant v. Stoney, 1 Ricii. Eq. 222 ; 
V. Stodder, 100 Mass. 528. M'Donald v. Crockett, 2 McC. Ch. 130. 

3 Sledge V. Clopton, 6 Ala. 589. In Kentucky, the words, "for her own 
* Jackson v. McAliley, Speers Eq. proper use and benefit," are held suffi- 

303 ; Fry v. Fry, 7 Paige, Ch. 461. cient. Griffith v. Griffith, 5 B. Monr. 

5 Hunt V. Booth, 1 Freem. Ch. 215 ; 113. Such, too, seems to have been 

185 



124 



THE DOMESTIC RELATIONS. 



[PAET II. 



tenance of a wife and cliilclreii are frequently sustained, 
though the trust does not vest their respective interests con- 
secutively.^ As in England, our courts permit an estate to be 
so settled on an unmarried female as to exclude the marital 
rights of any future hu^baud.^ 



the rule in Alabama. Warren v. Hal- 
sey, 1 S. & M. Ch. Gi?. The words 
" to the use and benefit " are held 
sufficient in Tennessee. Hamilton v. 
Bishop, 8 Yerg. 83. So in Alabama, 
words importing enjoyment " without 
let, hindrance, or molestation what- 
ever." Newman v. James, 12 Ala. 29. 
And where one clause of a will applies 
the words, " in trust for the separate 
use," to certain property, and another 
applies to certain property the words 
"in trust" only, the separate use may 
by construction embrace the whole. 
Davis V. Cain, 1 Ired. Eq. 304. The 
word " exclusively " in the wife's favor 
is held to exclude the husband. Gould 
V. Hill, 18 Ala. 84. So, too, " to be 
hers and hers only." Ellis v. "Woods, 
9 Rich. Eq. 19; Ozley v. Ikelheimer, 
26 Ala. 332. 

Trust, to pay income to a wife " for 
and during the joint lives of her and 
her husband, taking her receipt there- 
for," is held to give her a sole and sep- 
arate estate in the income. Charles v. 
Coker, 2 S. C. n. s. 122. Trust to 
" exclusive use, benefit, and behoof " is 
held sufficient to create a separate use. 
Williams v. Avery, 38 Ala. 115. So, 
too, "for her own use and benefit, in- 
dependent of any other person." Wil- 
liams V. Maull, 20 Ala. 721 ; Ashcraft 
V. Little, 4 Ired. Eq. 236. So, too, " ab- 
solutely," in a suitable connection. 
Brown v. Jolmson, 17 Ala. 232; Short 
V. Battle, 52 Ala. 4-56. So, too, " to be 
for her own and her family's use during 
her natural life." Heck v. CUppenger, 
5 Penn. St. 385 ; Hamilton v. Bishop, 
8 Yerg. 33. Or, " for the use and bene- 
fit of the wife and her heirs." Good v. 
Harris, 2 Ired. Eq. 630. Or, " not to be 
sold, bartered, or traded by the hus- 
band." Woodrum v. Kirkpatrick, 2 

186 



Swan, 218; Clarke v. Windham, 12 
Ala. 798. 

On the other hand, there is authority 
against permitting such expressions as 
tliese to create the separate use : " For 
the use and benefit of." Clevestine's 
Appeal, 15 Penn. St. 499 ; Fears v. 
Brooks, 12 Ga. 198 ; Tennant v. Stoney, 
1 Rich. Eq. 222; Prout v. Roby, 15 
Wall. 471; Merrill v. Bullock, 105 
Mass. 480; Guishaber v. Hairman, 2 
Bush, 320. Or, to the wife "in her 
own right," as in the English cases. 
lb. supra, § 105. Or, " for the joint 
use of husband and wife." Geyer v. 
Branch Bank, 21 Ala. 414. Cf. Charles 
V. Coker, 2 S. C. n. s. 122. See post, 
ch. 14, as to conveyances to hus- 
band and wife. Or, " to her and the 
heirs of her body and to them alone," 
and similar expressions. Clevestine's 
Appeal, 15 Penn. St. 499; Bryan v. 
Duncan, 11 Ga. 67 ; Foster v. Kerr, 4 
Rich. Eq. 390. Or where, instead of 
restraint of husband's right of disposi- 
tion, is stated a mere exemption from 
liability for his debts. Harris v. Harbe- 
son, 9 Bush, 397 ; Gillespie i: Burlinson, 
28 Ala. 551. But see Young v. Young, 
3 Jones Eq. 2(50. Or, to some one's 
wife, without further exclusive descrip- 
tion. Moore v. Jones, 13 Ala. 296 ; 
Fitch V. Ayer, 2 Conn. 143; Shirley v. 
Shirley, 9 Paige, 364. 

But the words, to the wife's "sole 
and separate use," are most common- 
ly applied. Or, "solely for her own 
use." See last c, § 105. Or, "for the 
sole use and benefit of." Schoul. 
Hus. & Wife, §§ 226, 227, and cases 
cited. 

1 Good V. Harris, 2 Ired. Eq. 630; 
Hamilton v. Bishop, 8 Yerg. 33; An- 
derson v. Brooks, 11 Ala. 953. 

•^ Beaufort v. Collier, Humph. 487 ; 



CHAP. IX.] wife's separate PROPERTY. § 125 

On the whole, it is apparent that there is much contrariety 
in the decisions, so far as relates to technical expression. 
Courts of equity, as such, will not deprive the husband of 
his legal rights upon any doubtful construction of language.^ 
But the question relates rather to intention, to substance, 
and not literal expression ; and any language is now deemed 
usually sufficient, whatever the technical words, which clear- 
ly expresses the intent to create a separate estate for the wife, 
independently of her husband's control.^ 

In the courts of this country, moreover, the statute policy 
is found to supplement equity. As a general rule an equita- 
ble trust by instrument requires the construction of that in- 
strument to operate. But this does not necessarily conclude 
the wife. For, while an equitable separate estate is created, 
where the intent to exclude the marital rights of the husband 
clearly and unequivocally appears from the force and certainty 
of the terms employed, the local statute may intervene where 
the intent is doubtful, equivocal, or open to speculation, and 
fix the character of the estate as the wife's separate statutory 
and legal estate.^ On the other hand, a conveyance or trust 
duly created for a married woman's separate benefit and duly 
expressed, is to be regarded as her equitable rather than her 
statutory estate.'* 

§ 125. Equity Doctrine ; Acquisition by Contract ; Produce 
and Income. — A married woman cannot by contract acquire 
any property to her separate use ; but the benefit of her con- 
tract, if any, enures to her husband.^ 

The savings of the interest arising from the separate estate 
of a married woman are as much separate property as the 
principal, unless she has suffered them to pass under her hus- 
band's marital control. And property purchased with such 

O'Kill V. Campbell, 3 Green Ch. 13 ; ation of parol trusts for separate use, 

Ordway v. Bri^lit, 7 Heisk. 681. see Sclioul. Hus. & Wife, § 228; Por- 

1 Buck y. Wroten, 24 Gratt. 250; ter v. Bank of Rutland, 19 Vt. 410; 
Bowen v. Sebree, 2 Bush, 112. Spaulding v. Day, 10 Allen, 96 ; Wat- 

2 See Prout v. Eoby, 15 Wall. 471 ; son v. Broaddus, 6 Bush, 328. 
Gaines v. Poor, 3 Met. (Ky.) 503. ^ Lansier v. Ross, 1 Dev. & Bat. 

3 Short V. Battle, 52 Ala. 456. Eq. 39. But see Pinney v. Fellows, 

4 Pepper iJ. Lee, 53 Ala. 33 ; Musson 15 Vt. 525; Schoul. Hus. & Wife, 
V. Trigg, 51 Miss. 172. As to the ere- § 250. 

187 



§ 127 THE DOMESTIC EELATIONS. [PAET n. 

savings belongs to her and continues subject to the same 
rules.^ But furniture purchased by the wife with the income 
of her separate estate, and mixed with the furniture of the 
husband, becomes presumably the property of the husband, 
unless it was understood between them, at the time of the 
purchase, that the property should be kept by him as her 
trustee merely ; ^ for it is both natural and proper that the 
wife should bestow her income so as to follow the common- 
law rule, thus helping to defray the family expenses and 
maintain the household establishment. 

§ 126. Equity Doctrine ; Preserving Identity of Fund. — In- 
deed, as to mingled funds generally, the rule applies that 
equity will not interfere where a fund set apart for the wife's 
sole benefit has become mixed with other funds beyond the 
possibility of identification, ^ But, on the other hand, the 
proceeds of a transfer of the wife's separate property, which it 
is understood shall be the wife's, may be followed by her in 
equity, provided she can trace the identity, and has acted 
consistently with her claim of title, even though the husband 
takes the title in himself.* A distinction may sometimes be 
requisite between the case where a wife asserts her equitable 
title against her husband, and that where her title is claimed 
against bona fide purchasers from the husband, having neither 
actual nor constructive notice of her title.^ 

§ 127. Equity Doctrine; Separate Use only in Married State ; 
How Ambulatory. — In the United States, as in England, the 
separate estate in equity continues only during the marriage 
state, with probably similar qualifications.^ The husband 
surviving his wife has the same rights in her separate estate 
as in her other property, even though another be appointed 
administrator.'^ The estate of the trustee, as such, terminates 
on the wife's death.^ And yet if the husband, on survivor- 

1 Merritt v. Lyon, 3 Barb. 110 ; ^ c^gg siipra, § 108. 
Hort V. Sorrell, 11 Ala. 386. See Kee ^ Supra, § 107. 

V. Vasser, 2 Ired. Eq. 553. See supra, ^ Spann v. Jennings, 1 Hill Ch. 325; 
§ 106. Good V. Harris, 2 Ired. Eq. 630; Mc- 

2 Sliirley v. Shirley, 9 Paige, 8G3. Kay v Allen, 6 Yerg. 44. And see 

3 Buck V. Ashbrook, 59 Mo. 200. Cooney v. Woodburn, 33 Md. 320, where 
* Dula V. Young, 70 N. C. 450; wife left no issue surviving. 

Haden v. Ivey, 51 Ala. 381. ^ Bercy v. Lavretta, 63 Ala. 374. 

188 



CHAP. IX.] wife's separate PROPERTY. § 129 

ship, is entitled to his wife's separate personal estate by virtue 
of his marital rights, he must, in order to obtain it from 
others, and have a firm title against creditors, take out letters 
of administration, as American cases hold, — at least where 
antenuptial debts of the wife have not been recovered during 
marriage.^ 

Consistently with its intent, the separate use may have an 
ambulatory operation, as under the English rule, ceasing 
when the wife becomes a widow, and, if left undisposed of, 
reviving, supposing she marries again.^ Where the trust for 
a wife's sole benefit is expressed to be free from the control 
of " any present or future husband," equity will not set the 
trust aside on the death of a husband.^ But it is held in this 
country that if a married woman having a separate estate sur- 
vives her husband, tlie restraints upon the disposal of the 
estate, inconsistent with its general character, cease with the 
coverture.^ 

§ 128. Equity Doctrine ; "Whether Marital Obligations Affected. 
— The English doctrine that the wife's separate estate is not 
necessarily liable for her own general or antenuptial debts is 
also admitted here.^ Nor, in the absence of an intention on 
the wife's part to make such estate liable, can it be subjected to 
her general debts contracted during coverture.^ And in gen- 
eral the husband's obligation to maintain his wife and family 
remains unaffected by the fact that the wife holds separate 
property.'' 

§ 129. Equity Doctrine ; Restraint upon Anticipation. — Am- 
erican courts have seldom to consider clauses of restraint 

1 McKay v. Allen, 6 Yerg. 44; Appeal, 92 Penn. St. 504; Bercy v. 
Schoul. IIus. & Wife, § 233. Lavretta, 63 Ala 374. 

2 Supra, ^107. 6 Vanderheyden i'. Mallory, 1 Comst. 

3 O'Kill V. Campbell, 3 Green Ch. 452. 

13. 6 Knox i,\ Picket, 4 Desaus. 92; Gee 

* Smith V. Starr, 3 Whart. 62 ; v. Gee, 2 Dev. & Bat. 103 ; Haygood v. 

Pooley V. Webb, 3 Cold. 599; Thomas Harris, 10 Ala. 291 ; Curtis v. Engel, 2 

V. Harkness, 13 Bush, 23. See Perry Sandf. Ch. 287. But a disposition to 

Trusts, § 652; Schoul. Hus. & Wife, overthrow this iiarsh rule appears in 

§ 234. Por a peculiarity in the Penn- some States. Schoul. Hus. & Wife, 

sylvania rule as to contemplation of §235; Dickson y. Miller, 11 S. & M. 594. 

future marriage, in such trusts, see '' Meth. Ep. Church v. Jaques, 1 

Schoul. Hus. & Wife, § 234 ; Snyder's Johns. Ch. 450. 

189 



§ 130 THE DOMESTIC RELATIONS. [PAET II. 

against anticipation or alienation,^ a subject to which English 
chancery courts have devoted so much attention. Restrain- 
ing a wife's power to deal with her separate property seems, 
in American policy, too much like denying her a separate 
property. Yet there are good grounds for such constraint ; 
and in various instances our State courts find occasion to 
recognize such clauses. ^ The restraint is held, as in England, 
to apply equally to real or personal property, and to estates 
in fee or for life. It will come into operation, like the separate 
use to which it is attached, where a woman marries ; but it 
exists only in the marriage state, since one sui juris is unre- 
strainable by any such means from exercising the ordinary 
rights of ownership, whether widow or maiden.^ 



CHAPTER X. 



THE wife's DOMINION" OVEB HER EQUITABLE SEPARATE 

PROPERTY. 

§ 130. General Principle of Wife's Dominion. — The right to 
enjoy property carries with it, universally, as a necessary in- 
cident, the right of its free disposal. All other things, then, 
being equal, we shall expect to find that married women, 
when allowed to hold estate to their separate use, are per- 
mitted to sell, convey, give, grant, bargain, or otherwise dis- 
pose of it ; and further, to encumber it with their debts as 
they please. Public policy may, however, restrain their 
dominion. Our present discussion relates to the wife's do- 
minion over her equitable separate property. The wife's 
dominion over statutory separate property, or that held under 

1 Supra, § 110. quivocal expression of intent to re- 

2 Freeman v. Flood, 16 Ga. 528; s^train the jus disponendl. A declaration 
(Jirta in Wilburn v. McCalley, 63 Ala. that the property shall not be liable for 
436 ; Burnett v. Hawpe, 25 Gratt. 481. her debts, &c., is insuflacient. Witsell 

3 Wells V. McCall, 64 Penn. St. 207 ; v. Charleston, 7 S. C. 88 ; Radford v. 
Parker v. Converse, 5 Gray, 336. Carwile, 13 W. Va. 572. 

There must be a clear and une- 

190 



CHAP. X.] DOMINION: WIFE's EQUITABLE PROPEr.TY. § 132 

our married women's acts, will be reserved for the chapter 
succeeding. 

§ 131. Wife, unless restrained, has Full Po-wer to dispose. — 
The clause of restraint upon anticipation or alienation, and 
its important effect upon the wife's power of disposal, we have 
already dwelt upon. Apart from this, in England, it is the 
general rule, so far at least as concerns personal property, 
that from the moment the wife takes the property to her sole 
and separate use, from the same moment she has the sole and 
separate right to dispose of it ; for, upon being once permitted 
to take personal property to her separate use as a feme sole, 
she takes it with all its privileges and incidents, including the 
Jus disponendi} And while she ma}^ be restrained by lan- 
guage of the instrument under which her title is acquired, 
amounting to a clause restraining anticipation, for instance, 
yet the intention to restrain her must be clearly expressed ; 
or else she may deal with the property as she pleases, either 
by acts inter vivos, or by testamentary disposition.^ Her 
power of disposition is not confined to interests vested in 
possession, but extends to reversionary interests settled to her 
separate use.^ 

§ 132. Same Principle applies to Income. — Tlie same prin- 
ciple applies to the income and profits and rents of the wife's 
separate property. The wife has the same control over her 
savings out of her separate estate as over the separate estate 
itself; "for," to use the somewhat involved metaphor of Lord 
Keeper Cowper, so often quoted, " the sprout is to savor of 
the root, and to go the same way." * Following this general 
doctrine, the wife, if unrestricted by the terms of the trust, 
may anticipate and encumber rents settled apart for her sep- 

1 Fettiplace v. Gorges, 1 Ves. Jr. 48; Ves. 192 ; Headen v. Kosher, 1 M'Cl. & 
3 Bro. C. C. 9 ; Peaohey Mar. Settl. Y. 89 ; Donne v. Hart, 2 Russ. & M. 
261, 262. See 20 & 21 Vict. c. 57, the 860. 

"reversionary act." * Gore v. Knight, 2 Vern. 535; s. c. 

2 Richu. Cockell, 9 Ves. 369; Moore Free, in Ch. 255. See also Messenger 
V. Morris, 4 Drew. 38 ; Darkin v. Dar- i-. Clarke, 5 Exch. 392 ; Peaohey Mar. 
kin, 17 Beav. 581; Caton v. Hideout, Settl. 262; Newlands v. Paynter, 10 
1 Mac. & Gord. 601. Sim. 377 ; s. c. on appeal, 4 M. & Cr. 

3 2 Bright Hus. & Wife, 222; Macq. 408; Humphery v. Richards, 2 Jur. 
Hus. & Wife, 295 ; Sturgis v. Corp, 13 n. s. 432. 

191 



§ 134 THE DOMESTIC RELATIONS. [PART 11. 

arate use.^ But where the trust, by suitable expression, 
restrains the wife from anticipation, permitting her only to 
receive the income from her trustee from time to time as it 
falls due, she cannot anticipate and encumber her income. ^ 

§ 133. Technical DifBculties as to disposing of Real Estate. — 
Where the wife's separate property consists of real estate, her 
power of disposition is affected by technical difficullies as to 
the method of executing conveyances.^ But it has been sug- 
gested in England that, according to the principle of modern 
equity cases, the heir ought to be treated as a trustee, in case 
the wife had conveyed her beneficial interest by deed exe- 
cuted by herself alone, and that thus her sole conveyance 
would be allowed to operate.* In most parts of the United 
States a married woman can only dispose of her real estate, 
whether legal or equitable, by a conveyance according to 
statute, which the husband executes in token of assent; a 
partial reason for this being that the husband has his rights 
of curtesy even in lands settled to his wife's separate use.^ 
Rents and profits of her separate land, or an annuity charged 
upon land, follow the more liberal rule of jDcrsonal property 
held as her separate estate,^ unless afterwards converted into 
land,'^ 

§ 134. Liability of Separate Estate on Wife's Engagements; 
English Doctrine. — As a corollary to our proposition, the wife 

1 Cheever v. Wilson, Wall. 108. ^ ghipp y_ Bowmar, 5 B. Mon. 1G3 ; 

2 Chancellor Kent, in Jaques v. Radford v. Carwile, 13 W. Va. 572 ; 2 
Methodist Episcopal Church, 3 Johns. Perry Trusts, § 656; supra, §§ 94-97; 
Ch. 77. McChesney v. Brown, 25 Gratt. 393 ; 

3 2 Roper Hus. & Wife, 182 ; 1 Koltenback v. Cracraft, 36 Ohio St. 
Bright Hus. & Wife, 22i. See Ex parte 584 ; Miller v. Albertson, 73 Ind. 343. 
Ann Shirley, 5 Bing. 226, cited in But in New York, by way of an appoint- 
Macq. Hus. & "Wife, 296. See also ment, a married woman may convey 
Peachey Mar. Settl. 267 ; Harris r. such interests without the joinder of 
Mott, 14 Beav. 169. her husband. Albany Eire Ins. Co. v. 

* Macq. Hus. & Wife, 296, 297 ; 2 Bay, 4 Comst. 9. See Armstrong v. 

Story Eq. Juris. § 1390, and cases cited ; Ross, 5 C. E. Green, 109. 
3 Sugd. V. & P. App. 62 ; Newcomen 6 Cheever v. Wilson, 9 Wall. 108 ; 

V. Hassard, 4 Ir. Ch. 274 ; Burnaby v. Vizoneau v. Pegram, 2 Leigh, 183 ; 

Griffin, 3 Yes. 266; Peachey Mar. Settl. Major v. Lansley, 2 R. & M. 355. 
268. The statute referred to as raising ' McChesney v. Brown, 25 Gratt. 

technical difficulties in real estate is 3 393. 
& 4 Will. IV. c. 74. 

192 



CHAP. X.] DOMINION: WIFE's EQUITABLE PKOPEETY. § 134 

may enter into contract with reference to her separate prop- 
erty somewhat as a feme sole. Formerly it was otherwise ; 
and for a long period the English courts of equity refused to 
married women having separate estate the power to contract 
debts. ^ But the unfairness of permitting a wife to liold and 
enjoy her separate property after she had incurred debts 
specificall}' upon the faith of it soon became evident, as well 
as the inconvenience she suffered in being unable to find 
credit where she meant to deal fairly. So the courts felt 
compelled, after a while, to admit that she might in equity 
charge her separate estate by a written instrument, executed 
with a certain degree of formalit}^ such as a bond under her 
hand and seal.^ One precedent in the right direction leads 
to another, and soon less formal instruments were brought, 
one after another, under this rule ; promissory notes, bills of 
exchange, and lastly written instruments in general.^ Even 
here the court could not safely intrench itself ; for the incon- 
sistency of drawing distinctions between the different sorts of 
engagements of a married woman having separate estate could 
be readily shown ; but it made a halt. The doctrine of an 
equitable appointment was alleged to support the new distinc- 
tion.^ Sound reasoning at last proved too strong an antago- 
nist ; this position was abandoned ; and it became at length 
the settled doctrine of the equity courts of England that the 
engagements and contracts of a married woman, whether 
general or relating specifically to her separate propertj^ are 
to be regarded as constituting debts, and that her property so 
held is liable to the payment of tliem, whether the contract 
be expressed in writing or not ; and all the more so if she 
lives apart from her husband, and the. debt could only be 

1 Vauglian v. Vanderstegen, 2Drew. Kirkwall, 3 Madd. 387 ; Master v. Ful- 
180; Peacliey Mar. Settl. 269; New- ler,l Ves. Jr. 513; Gaston u. Frankum, 
comen v. Hassard, 4 Ir. Cli. 274. 2 De G. & Sm. 5G1 ; s. c on appeal, 16 

2 Biscoe i\ Kennedy, 1 Bro. C. C. Jur. 507; Peacliey Mar. Settl. 270, and 
17; Hulme v. Tenant, 1 Bro. C. C. 16; cases cited; Tullett v. Armstrong, 4 
Norton v. Turvill, 2 P. Wms. 144; Beav. 323; Owen v. Homan, 4 11. L. 
Tullett V. Armstrong, 4 Beav. 323. Cas. 997. Taking a lease and agree- 

8 See Murray v. Barlee, per Lord ing to pay rent conies within the rule. 
Brougham, 3 Myl. & K. 210; Bullpin Gaston i;. Frankum, su;;ra. 
V. Clarke, 17 Ves, 365 ; Stuart v. Lord * Field v. Sowle, 4 Russ. 112. 

13 193 



§ 134 THE DOMESTIC RELATIONS. [PAET II. 

satisfied from her separate property.^ " Inasmuch as her 
creditors have not the means at law of compelling payment of 
those debts," says Lord Cottenham, " a court of equity takes 
upon itself to give effect to them, not as personal liabilities, 
but by laying hold of the separate property as the only means 
by which they can be satisfied." ^ 

But while the contract for payment of money made by a 
married woman having separate estate creates a debt, it is, 
practically considered, only a debt sub modo, when compared 
with the debt of a man or an unmarried woman. It cannot 
be enforced against her at law ; and Lord Cottenham's lan- 
guage indicates that it is enforceable in equit}^ not on the 
ground that she incurred a personal obligation, but because 
there is property upon which the obligation may be fastened. 
Hence it is said that there can in no case be a decree against 
a married woman in personam ; the proceedings are simply 
against her separate property in rem? And though she is a 
necessary party to a suit to enforce pa5'ment against her sepa- 
rate estate, yet, if that estate be held in trust for her separate 
use, the suit must be against the trustees in whom that prop- 
erty is vested ; the decree in such case being rendered, not 
against her, but against the trustees, to compel payment from, 
her separate estate. Moreover, if the wife survive her hus- 
band, although the creditors may still enforce their demand 
in equity against her separate estate, yet her person and her 
general property remain as completely exempted from liability 
at law and in equity as in other cases of debts contracted by 
her during coverture.'^ 

1 Peachey Mar. Settl. 271, 272, and Settl. 273. But see Keogh v. Cathcart, 

cases cited ; Vauglian v. Vanderstegen, 11 Ir. Ch. 285. 

2 Drew. 184; Owens v. Dickenson, * Vauglian y. Vanderstegen, 2 Drew. 

Craig & Phil. 48; Macq. Hus. & Wife, 184; Peacliey Mar. SetU. 273; Macq. 

303; Picard v. Iline, L. R. 5 Ch. 274. Hus. & Wife, 304. But her promissory 

But see Newcomen r. Hassard, 4 Ir. note, given during coverture so as to 

Ch. 274 ; 1 Sugd. Pow. 206, 7th ed. bind lier separate estate, is a good con- 

■■2 Owens V. Dickenson, Craig & Phil, sideration for another promissory note, 

48. given after her husband's death, for a 

3 Hulme V. Tenant, 1 Bro. C. C. 16; balance then due, though the former 

Ashton V. Aylett, 1 Myl. & Cr. Ill ; note be barred by the statute of limi- 

Macq. Hus. & Wife, 304; Peachey Mar. tations. Latouche v. Latouche, 3 Hurl. 



& Colt. 576. 



194 



CHAP. X.] DOMINION: WIFE's EQUITABLE PROPERTY. § 184 

Here, however, the fictions of equity create a new practical 
difficulty. For if the wife be a, f erne sole at all, with reference 
to her separate property, must she not have power to bind 
herself personally? In Steady. Nelson a husband and wife 
undertook, for valuable consideration, by writing under their 
hands, to execute a mortgage of her separate estate. The 
husband died. Lord Langdale held that the surviviuij wife 
was bound by the agreement, and ordered a specific perform- 
ance.^ Certainly the ground of this decision must have been 
that the obligation was not upon her property alone, but upon 
her person. At the same time it is readily admitted that 
there are reasons of polic}'- why the wife should be exempted 
from personal execution during coverture. This latter view 
accords with the common-law practice in analogous cases.^ 
Perhaps, then, the more consistent view of the subject would 
be that the wife incurs a personal obligation, morally and 
legally, on such contracts, express or implied, as she may 
make during coverture with reference to lier separate prop- 
erty ; but that the general disabilities of coverture interpose 
obstacles to the enforcement of remedies by a creditor, which 
obstacles the courts of equity feel bound to regard ; and hence 
that they confine the remedies to her separate estate, upon 
the faith of which, it may reasonabl}' be presumed, the cred- 
itor chose to rely. And this conclusion is that preferred on 
the whole by the courts.^ 

As a general rule, in England, it became settled, therefore, 
that wherever a married woman, having propertj^ settled to 
her separate use, enters into any contract by which it clearly 
appears that she intends to create a debt as against herself 
personally, it will be assumed that she intended that the 
money should be paid out of the only property by which she 
could fulfil the engagement.* 

A married woman, having separate estate, without a clause 
restraining her right of disposition, might charge and encum- 

1 2 Beav. 245; Macq. Hus. & Wife, trine of equitable appointment seems 
804. to be exploded. Lord Justice Turner 

2 Sparkes v. Bell, 8 B. & C. 1. in Joimson v. Gallagher, 3 De G. F. & 

3 2 Perry Trusts, §§ 655-663 ; Lewin J. 494 ; supra, p. 193. 

Trusts, 5th Eng. ed. 542, 543. The doc- * Earl v. Ferris, 19 Beav. 69. 

195 



§ 135 THE DOMESTIC RELATIONS. [PART 11. 

ber it in any manner she chose, either as security for her 
husband's debts, her own, or those of a stranger ; provided 
she did not appear to have been imposed upon in the transac- 
tion. ^ A married woman might bind the corpus of her sep- 
arate property by her compromise of a suit which she had 
instituted by her next friend.^ She might also contract for 
the purchase of an estate, and, even though the contract 
made no reference to her separate propert}^, it was bound by 
her agreement.^ 

§ 135. The Same Subject; Latest English Doctrine. — But in 
the latest English decisions a new turn — and that towards 
the better protection of wives having separate property against 
their own imprudent disposition thereof — is indicated, which 
"we may attribute in some measure to the legislative changes 
concerning married women's rights, agitated on both sides of 
the ocean, and the influence of contemporaneous American 
equit}'- decisions evoked by the prior legislation of our respec- 
tive States upon the subject. In Johnson v. Gallagher^ de- 
cided in 1861 by the English Court of Appeal in Chancery, 
the court checked the loose disposition to fastening liabilities 
of a married woman, no matter how improvidently incurred, 
upon her separate estate, on the mere faith of an implied 
engagement.^ It would still appear that in England a mar- 
ried woman may, upon her separate credit, not only give her 
banker a lien for her overdrafts,^ but employ a solicitor, or a 
surveyor, or a builder, or a tradesman, or hire laborers or 
servants, all on the credit or for the immediate benefit of her 
separate property ; ^ and that her corporation shares are 

1 Clerk V. Laurie, 2 Hurl. & Nor. * Johnson v. Gallagher, 3 De G. F. 
199 ; Peachey Mar. Settl. 292. See & J. 494. And see the prior English 
Horner v. Wheelwright, 2 Jur. n.s. 367. cases very fully cited in the opinion of 
The same rule applied in the United Lord Justice Turner. 

States. See post, § 137 ; Short v. Battle, ^ London Bank of Australia v. Lem- 

52 Ala. 4-56; Armstrong v. Ross, 5 C. E. priere, L. R. 4 P. C. 572, 594. 

Green, 109. ^ See Lord Justice James, in Lon- 

2 Wilton V. Hill, 25 L. J. Eq. 156. don Bank of Australia v. Lempriere, 

3 Dowling V. Maguire, Lloyd & supra; Lord Justice Turner, in John- 
Goold, temp. Plunket, 1 ; Crofts v. Mid- son v. Gallagher, 3 De G. F. & J. 
dleton, 2 Kny & Johns. 194, reversed on 494. 

appeal. And see Schoul. Hus. & Wife, 
§243. 

196 



CHAP. X.] DOMINION: WIFE'S EQUITABLE PROPERTY. § 136 

liable to assessment.^ Where a married woman contracts any 
such debt which she can only satisfy out of her separate 
estate, her separate estate will, in equity, be made liable to 
the debt.^ Doubt is thrown, however, upon the extent of 
tlie binding force of engagements not for the wife's benefit ; 
and, on the whole, the test in chancery seems to be settling, 
at the present day, towards regarding whether the transaction 
out of which the demand arose had reference to, or was for 
the benefit of, the wife's separate estate ; and, on the whole, 
unsatisfactory as may be this abstruse discussion, circum- 
stances are likely to determine the decision of each case, with 
perhaps a growing partiality in favor of a married woman's 
rights, and a growing indisposition to make her suffer. 

§ 136. Dominion and Liability of Wife's Separate Estate ; 
American Doctrine. — In this country, whenever the wife's 
separate use has been admitted as a doctrine of equity, inde- 
pendently of statute, her right of dominion has also been 
recognized. The celebrated New York case of Jaques v. 
Methodist Episcopal Church, which may justly be placed fore- 
most among the very few important American chancery 
decisions of this class, established that a feme covert, with 
respect to her separate estate, and especially her personal 
property, was to be regarded in equity as a fetne sole, so that 
she might dispose of it at pleasure, except so far as expressly 
denied or restrained by the terms of the instrument which 
created the trust.^ Numerous American cases also rule, con- 
formably with English precedents, that a married woman 
may, by her contracts or engagements, bind her separate 
property, it being sufficient that there was an intention to 
charge her separate estate ; and further, that bj' contracting 
a debt during coverture she furnishes a presumption of that 



1 Matthewman's Case, L. R. 3 Eq. McChesney v. Brown, 25 Gratt. 39.3 ; 
787. Patton v. Charlestown Bank, 12 W. 

2 Picard V. Hine, L. R. 5 Ch. App. Va. 587 ; Wells v. Thorman, 37 Conn. 
274. 319 ; Leaycraft v. Hcdden, 3 Green Ch. 

3 Jaques v. Methodist Episcopal 512; Fears v. Brooks, 12 Ga. 200; 
Church, 17 Johns. 548; Methodist Bradford v. Greenway, 17 Ala. 805; 
Episcopal Church v. Jaques, 1 Johns. Shipp v. Bowmar, 5 B. Mon. 163 ; Kir- 
Ch. 450; 3 ib. 77; 2 Kent Com. 164; win v. Weippert, 46 Mo. 532. 

197 



§ 136 THE DOMESTIC RELATIONS. [PART II. 

intention, since otherwise her contract must have been worth- 
less to her creditor.^ In general, however, it is to be observed 
that the American equity doctrine of the wife's power to 
charge her separate estate, independently of the married 
women's acts, has fluctuated somewhat, as have likewise the 
English cases, and that not only do American courts find 
difficulty, like those of England, in encountering cases where 
the liability incurred was disadvantageous to the wife, and at 
the same time not cleaiiy charged by her upon her separate 
property ; but this further source of perplexity appears more- 
over, namely, that local legislation, in these later years, 
places the rights of married women on quite a novel footing. 
Some States favor a stricter rule ; in few States, indeed, did 
the subject receive much development prior to the second 
half of this century ; while the polic}^ of the married women's 
acts themselves, in most jurisdictions, must be opposed to 
making such legislation disadvantageous to her interests. 
Hence a course of precedents, of later years, hardly less ab- 
struse and irreconcilable than those of the English chancery, 
but somewhat independent of them. This doctrine may 
better be studied at length in our next chapter, in connection 
with legislative changes affecting the wife's right of disposi- 
tion in this country. To this extent, however, American 
courts occupy sure and uniform ground, namely, that while a 
married woman may not be bound personally b}^ her contract, 
the rule under the statutes and independently of them^ is, 
that when services are rendered her by her procurement, or 
she contracts a debt generally, on the credit and for the 
benefit of her separate estate, there is an implied agreement 
and obligation springing from the nature of the consideration, 
which the courts will enforce by charging the amount on her 
separate property as an equitable lien.^ 

In American chancery courts, in fact, the charging of the 

1 2Kent Com. 164, and cases cited; Ballin r. Dillaye, 37 N. Y. 35; Arm- 
Schoul. Hus. & Wife, § 246. strong v. Ross, 5 C. E. Green, 109 ; 

2 Wilson V. Jones, 46 Md. 349 ; Coz- Buckner i-. Davis, 29 Ark. 444 ; Dale 
zcns r. Wliitney, 3 R. I. 79; Harsh- r. Robinson, 51 Vt. 20 ; Eliott u. Gower. 
berger v. Algier, 31 Gratt. 52. 12 R. I. 79. 

3 Owen V. Cawley, 36 N. Y. 600; 

198 



CHAP. X.] DOMINION : WIFE's EQUITABLE PROPERTY. § 136 a 

wife's separate estate by equity proceedings is presented 
with reference sometimes to her equitable, and sometimes to 
her statutory, separate estate. lu some States the complete 
jurisdiction of trusts for separate use is the creature of recent 
statute ; ^ in others, the rule is deliberately admitted, in chan- 
cery, to differ as to statutory and equitable separate estate ; ^ 
in others, once more, chancery seeks, and with true consis- 
tency, to apply one and the same principle where it takes 
jurisdiction of separate estate at all. The discrepancy of all 
these modern American authorities relates chiefly, (1) to de- 
termining the liability of the wife's equitable or statutory 
separate estate for debts and engagements not beneficial to 
the wife herself, or to the estate, but, if at all, for her hus- 
band's or a stranger's benefit, and (2) to fixing the nature of 
the evidence of intention required for such charges. The 
equitable rule in the United States, more common prior to 
the married women's acts, appears to have been, that the 
wife's separate estate would be held liable for all debts which 
she, by implication or expressly, by writing or b}^ parol, 
charged thereon, even if not contracted directly for the bene- 
fit of the estate.^ But such is by no means the rule to-day. 

§ 136 a. Property with Power of Appointment. — Property 
limited to such uses as a married woman shall appoint is not 
separate estate. There is a difference between property sub- 
ject merely to her power of appointment, and property settled 
to her sole and separate use. In the former instance she may 
dispose of the estate by executing an instrument according 
to the strict letter of her authority. In the latter, she is 
invested with a beneficial interest and enjoyment, however 
restricted may be the dominion allowed her by the donee. 
A married woman may, however, be expressly authorized to 
appoint by will and not by deed, and the exercise of such 
power in favor of volunteers may render the appointed funds 
assets for the satisfaction of debts properly chargeable against 

1 See Hoar, .J., in Willard v. East- 3 2 Kent Com. 1G4 ; 2 Story Eq. 
ham, 15 Gray, 328. Juris. §§ 1.398, 1401, and cases cited; 

2 Musson V. TripTR, 51 Miss. 172; Ballin z;. Dillaye, 37 N. Y. 35. 
Robinson v. O'Neal, 5G Ala. 541. 

199 



§ 137 THE DOMESTIC RELATIONS. [PAET n. 

her separate estate.^ In general, equity permits a married 
woman to dispose of property according to the mode, if any, 
prescribed by tlie instrument under which the separate use is 
created. 2 

§ 137. Wife's Right to Bestow upon Husband, Bind for his 
Debts, &c. — A married woman, save so far as she is restrained 
from anticipation by the terms of the trust, may bestow her 
separate property upon her husband by virtue of her right of 
disposal ; although at common law no such thing is known as 
a gift between husband and wife. Slie may likewise transfer 
it to him for a valuable consideration.^ But acts of this sort 
are very closely scrutinized ; and undue influence on the part 
of the husband, or the fraud of botli husband and wUe upon 
creditors of either, will often explain the motive of such 
transactions, and suffice for setting them aside in equity.* 
The fact that the husband receives the capital of his wife's 
separate property raises the inference, not of a beneficial 
transfer to him, but of a transfer to him as her trustee.^ A 
gift to him requires clear evidence, such as acts of dominion, 
or the use of the property for his business or to execute his 
marital obligations.^ 

So may the wife, unless specially restrained by the trust, bind 
her separate property for her husband's debts." It is also well 
settled, both under the married women's acts of our respec- 
tive States, and independently of them, that a married woman 
may execute a mortgage jointly with her husband to secure his 
debts, in which case she is to be regarded as his surety ; and 
this applies to lands held in her right, whether conveyed to 
her separate use or not, provided the conveyance be executed 

1 Be Harvey, 28 W. R. 73. ^ Sliirley v. Shirley, 9 Paige, 36' 

2 MoCliesney v. Brown, 25 Cratt. Rowe v. Howe, 12 Jur. 909. See fur 
393; Knowlfs v. Knowles, 86 III. 1; tlier, Sciioul. Hus. & Wife, §248. 
Jaques v. Methodist Episcopal Church, The wife's bond, executed to her huS' 
17 Johns. 548 ; Schoul. Hus. & Wife, band, has been sustained in the English 
§ 247. cliancery. Heathey v. Thomas, 15 Ves 

3 Lyn V. Ashton, 1 Russ. & M. 190; 596. 

Macq. Hus. & Wife, 297 ; 2 Kent Com. ^ Schoul. Hus. & Wife, §§ 249, 250 

111; Charles f. Coker, 2 S. C. N. s. 123. 2 Kent Com. Ill, and cases cited; S 

4 Pybus V. Smith, 1 Ves. 189. U. S. Eq. Dig. Hus. & Wife. 18 ; Dal 

5 Rich V. Cockell, 9 Ves. 300 ; Rich- lam v. Walpole, Pet. C. C. 116 ; Charles 
ardson v. Stodder, 100 JNlass. 628. v. Coker, 2 S. C. n. s. 123. 

200 



CHAP. X.] DOMINION: WIFE'S EQUITABLE PIIOPERTY. § 138 

by husband and wife jointly after the usual manner of such 
instruments under tlie statute, and no duress was imposed 
upon her.i And she may pledge her separate personal prop- 
erty as security in like manner.^ And her separate estate 
will be bound by any debt properly contracted by her, even 
though her husband should be the creditor.^ A gift or con- 
veyance by a wife to her husband, if fraudulently or forcibly 
procured by him, will be set aside in equity upon her repre- 
sentation ; so, too, where it was intended for his security, but 
taken out as absolute;^ but if the rights of a bona fide pur- 
chaser without notice of the fraud or force have intervened, 
her own rights may be impeded in the latter's favor.^ 

§ 138. Concurrence of Wife's Trustee, ■whether Essential. — 
Consistentl}- with the wife's right of dominion over her 
separate estate, the rule, both in English and American chan- 
cery courts, is, that the concurrence of the trustee of the fund 
is not essential to the validity of her disposition thereof.^ 
On the contrary, if she has the absolute beneficial enjoyment 
of the fund by the terms of the trust (there being no clause 
in restriction of her power), or in such manner, if it be real 
estate, that the statute of uses would execute the title or use 
in her, she can compel the trustee to make immediate con- 
veyance or transfer to her of the trust fund, and if they 
refuse they are liable to costs.'^ Even if the gift be to her 
husband or for his benefit, the trustee must transfer and give 
legal effect to the alienation, as in other instances of dis- 

1 Demarest ;'. Wynkoop, 3 Johns. & Wife, § 249 ; Dixon v. Dixon, L. R. 
Ch. 129 ; Vartie v. Underwood, 18 9 Cii. D. 587. 

Barb. 561; Bartlett v. Bartlett, 4 Al- 6 Essex r. Atkins, 14 Ves. 552 ; Cor- 

len, 440; Short v. Battle, 52 Ala. 456; gell v. Dunton, 7 Penn. St. 532; Jaques 

Young V. Graff, 28 111.20; Watsons, v. Metliodist Episcopal Church, 17 

Thnrber, 11 Mich. 457; Schoul. Hus. Johns. 548. 

& Wife, § 249. " Clerk i'. Laurie, 2 Hurl. & Nor. 

The method of conveying the wife's 199 ; Peachey Mar. Settl. 292; Schoul. 

general lands under our modern local IIus. & Wife, § 250 ; Taylor v. Glan- 

statutes is shown supra, §§ 94, 95. ville, 3 Mad. 179; Nortli American Coal 

2 Witsell V. Charleston, 7 S. C. 88. Co. v. Dyett, 7 Paige, 1; Gibson v. 

3 Gardner v. Gardner, 7 Paige, Walker, 20 N. Y. 476. And see Lewis 
112. V. Harris, 4 Met. (Ky.) 3-53. But see 

4 Stumpf r. Stumpf, 7Mo. App.272; Noyes v. Blakeman, 2 Seld. 567 ; s. c. 
Fargo V. Goodspced, 87 111. 290. 3 Sandf. 531, as to the effect of New 

5 O'Hara v. Alexander, 56 Miss. 316. York statute relative to the declaration 
For English rule see also Schoul. Hus. of trusts. 

201 



§ 139 THE DOMESTIC RELATIONS. [PAET II. 

position on lier part, reserving, of course, the right to show 
bad faith or undue influence affecting the validity of the 
transfer or conveyance, and so defeating it.^ 

But if, on the other hand, the instrument requires the 
written approval of the trustee expressed in a certain man- 
ner, tliat requirement must be complied with to make even 
the joint conveyance of husband and wife effectual ; ^ and it 
is incumbent on every trustee to see that all restrictions on 
the wife's dominion over the fund are duly respected.^ 

§ 139. Whether Wife must be specially restrained under the 
Trust. — In absence of all technical clauses, our general rule 
is that the wife, unless specially restrained by the terms of 
the trust under which she acquired her equitable separate 
property, may dispose of it at pleasure. Jaques v. 3IetJiodist 
Episcopal Church went so far as to rule that, though a par- 
ticular mode of disposition be specifically pointed out in the 
instrument, this will not preclude the wife from adopting any 
other mode of disposition, unless she has been, by express 
language of the trust, specially restrained to that particular 
mode.^ In this latter doctrine Chancellor Kent (whose judg- 
ment in the lower court had been reversed^) did not concur, 
— adopting the more conservative view with reference to 
such restrictions. The distinction is rather a nice one, and 
successive American decisions in other States have generally 
sustained the Chancellor's views, which seem indeed most 
consonant to reason and the intent of such trusts ; but the 
cases are, on the whole, conflicting, and not very conclusive.^ 

1 Essex V. Atkins, 14 Ves. 542 ; Mar- approved on appeal, was, tliat if a wife 
rick V. Grice, 3 Nev. 52 ; Standford has power expressly conferred to dis- 
V. Marshall, 2 Atk. 69; Knowles v. pose by deed in concurrence with her 
Knowles, 8G 111. 1. husband, or by will without it, her re- 

2 Gelston f. Frazier, 26 Md. 829. ceipt "alone" to be a sufficient dis- 
8 Hopkins v. Myall, 2 R. & M. 86 ; charge as to rents, issues, and profits ; 

McClintic v. Ochiltree, 4 W. Va. 249. the wife cannot appoint by deed, or 

See Horner v. Wheelwright, 2 Jur. charge the property by her sole bond, 

N. s. 367. note, parol promise, &c. 

4 Jaques v. Methodist Episcopal Hoar, J., in Willard v. Eastham, 15 
Church, 17 Johns. 548 ; Methodist Gray, 328, appears to have misappre- 
Episcopal Church v. Jaques, 1 Johns, hended this point. See Schoul. Hus. 
Ch. 450 ; 3 ib. 11. &, Wife, § 251. 

5 3 Johns. Ch. 77. The point con- ^ g^.,, TuUett v. Armstrong, 1 Beav. 
tended for by the Chancellor, but dis- 1, at length, for the English doctrine. 

202 



CHAP, X.] DOMINION: WIFE's EQUITABLE PROPERTY. § lil 

Both English and American precedents agree in the converse 
principle, that if, by the terms of the trust, the wife is expressly 
restrained to a particular mode of dealing with the separate 
fund, she cannot, even by proceedings in equity, be enabled 
to pursue any other inconsistent mode.^ 

§ 140. Wife's Participation in Breach of Trust with Husband 
or Trustee. — The separate estate of married women ma}' be 
affected, and their rights barred, by active participation in 
breaches of trust.^ But on the other hand, to preclude the 
wife from the right to relief simply because she has improperly 
permitted her husband to receive the trust funds, would be 
to defeat the very purpose for which the trust was created, 
— namely, the protection of the wife against her husband. 
Hence, according to the latest and best authorities, the court 
must be satisfied that the liusband has not in any degree 
influenced her acts and conduct, before it holds her separate 
estate to be affected ; and this, upon the most jealous inves- 
tigation.^ 

Where her husband and the trustee of the fund, by way of 
fraudulent collusion to deprive her of her property, make an 
improper transfer thereof out of her separate use, her assent 
will not be readily presumed to the transaction from circum- 
stances, while she remained in ignorance of it.'* 

§ 141. Income to Husband; One Year's Arrears. — By the 
ordinary rule of the English chancery courts a wife is pre- 
cluded from recovering the arrears of income on her separate 
estate for more than a year, upon the ground of a supposed 
gift to her husband.^ As to whether one year's income can 
be recovered or not there is much discrepancy in the English 



For American authorities, see 2 Kent. Wells, 9 Hare, 773. And see author- 
Corn. 165, 166, and cases cited in last ities cited, Schoul. Hus. & Wife, § 2-54; 
edition. Also Schoul. Hus. & Wife, Carpenter v. Carpenter, 27 N. J. Eq. 
§ 252. 502 ; Clive v. Carew, 1 John. & Hem. 

1 Ross V. Ewer, 2 Atk. 156; Schoul. 199. 

Hus. & Wife, §§ 237, 238, 247, 252. * Dixon v. Dixon, L. R. 9 Ch. D. 

2 Peachcy Mar. Settl. 276; Ryder 587. 

V. Bickerton, 3 Swanst. 80, n. ; Lord * Peachey Mar. Settl. 291, and cases 

Montford v. Lord Cadogan, 19 Ves. cited ; Rowley v. Unwin, 2 Kay & 

635. Johns. 142; Arthur v. Arthur, 11 Ir. 

3 Per Sir George Turner, Hughes v. Ch. 513. 

203 



§ 143 THE DOMESTIC RELATIONS. [PART II. 

cases ; but the better opinion, even here, is, that the husband 
has been allowed by the wife presumably to receive and ap- 
propriate her income from year to year, unless, by a consistent 
course of dissent, the wife, on her part, rebuts such presump- 
tion, in which case her will must be respected. If the wife 
is insane and incapable of assenting, or the income has not 
actually come to her husband's hands, and under the trust, 
moreover, the income is not payable to the husband, the in- 
come will belong to her ; though here the inclination of equity 
is to allow the reasonable offsets to the husband.^ 



CHAPTER XI. 

THE wife's dominion OVER HER STATUTORY SEPARATE 

PROPERTY. 

§ 142. Dominion under Married "Women's Acts in General. — 

The doctrine of the wife's dominion over her se^jarate estate 
is at this day more generally asserted, in the United States at 
least, with reference to the married women's acts ; and some 
of the later cases show important variations from the equity 
rule, as we shall proceed to notice. The decided change 
seems to date, in American chancery, from the passage of the 
important married women's acts, or about 1848, and in most 
States at this day to affect equitable remedies with reference 
to both the statutory and equitable separate estate of the 
wife. 2 

§ 143. Nevj" York Rule as to Wife's Charge not Beneficial. — 
The obstinate case of Yale v. Dederer is an important one, as 
establishing in a leading American State, under cover of 
modern legislative policy, a new doctrine, at variance with 
that of English equity courts noted in our last chapter, and 
apparently contrary to its own precedents.^ In this case the 
New York statutes of 1848 and 1849 were to be construed, 

1 LewinTrusts, 550; 2 Perry Trusts, ^ Yale v. Dederer, 18 N. Y. 265; 
§ 665, and cases cited. 8. 0. 22 N. Y. 450. 

2 ISupra, § 134. 

204 



CHAP. XL] DOMINION ; WIFE'S STATUTORY PROPERTY. § 143 

which in terms permitted the wife to hold to separate use, 
and to " convey and devise " as if sole, but left her promis- 
sory note as void as it always had been at the common law.^ 
A question properly raised was whether, notwithstanding her 
legal disabilities to contract remained substantially as before 
the statute, the married woman might, as incidental to the 
complete right of property and jus disponendi which she took 
under the statute, charge her estate for the purposes and to 
the extent which rules of equity had heretofore sanctioned 
with reference to her equitable separate estate. The de- 
cision was adverse, and the principle of the decision was 
this : that, in order to create a charge upon the separate 
estate of a married woman, the intention to do so must be 
declared in the very contract which is the foundation of the 
charge, or else tlie consideration must be obtained for the 
direct benefit of the estate itself. Later New York decisions 
follow the rule of this case, and require a distinct wiitten 
obligation to bind the wife where the debt is not contracted 
for the direct benefit of the estate.^ 



1 It appeared that the husband had 
offered his promissory note to the plain- 
tilf in paj'inent for certain cows which 
he wished to purchase ; that the plain- 
tiff, doubting his solvency, required him 
to procure his wife to unite in a note with 
him. Tills he did. The note was subse- 
quently renewed. At the time of sign- 
ing the note Mrs. Dedercr remarked 
that if her husband was not able to pay 
it, she was. Tiie husband turned out 
insolvent afterwards, and judgment on 
the note was returned nnlla bona as 
against him. It was established that 
the wife had sufficient real estate, held 
in her own right, to satisfy the claim ; 
and the judge, wlio heard the evidence, 
stated in his finding that "the defend- 
ant, Mrs. Dederer, intended to charge, 
and did expressly charge, her separate 
estate for the payment of the note." 
The Court of Appeals nevertheless 
held that Mrs. Dederer was a mere 
surety for her husband ; and that being 
such, although it was her intention to 
charge her separate estate, such inten- 



tion did not take effect. We may add 
that Yale v. Dederer was passed upon 
by the New York Court of Appeals 
three several times. After the first 
appeal, 18 N. Y. 2G5, the court below, 
which would at first have entered 
judgment to sell, found that the wife 
actually intended to charge her sepa- 
rate estate with the promissory note 
in question. Hence the principle so 
broadly asserted as to evidence in writ- 
ing on the second appeal (22 N. Y. 450) ; 
Selden, J , observing that hereafter 
married women were not to be in- 
debted to equity merely for protection 
in their separate estate. A third time 
(see 08 N. Y. 329), or about 1877, the 
case went up on appeal ; the effort 
upon the last trial being made to take 
the case out of the rule b_y evidence, 
but it was held that the findings as to 
the circumstances and intent were not 
inconsistent with the idea that the de- 
fendant had signed as surety. 

2 White V. McNett, 33 N. Y. 371 ; 
Ledlie v. Vrooman, 41 Barb. 109 ; 

205 



§ 143 THE DOMESTIC RELATIONS. [PART U. 

The decision in Yale v. Dederer, on its second appeal, made 
a profound impression among chancery jurists, the novelty of 
the married women's act favoring this result, and likewise 
the circumstance that chancery jurisdiction had hitherto been 
taken more liberally in New York than in other States in the 
Union. Opinions differed as to the merits of the decision, but 
not as to the boldness of the innovation upon chancery prece- 
dents. It does not appear that this doctrine has found favor 
in all the other States. In Wisconsin, the decision of Yale v. 
Dederer was unsparingly condemned soon after, in the course 
of judicial discussion.^ And for several years the more com- 
mon equitable rule in this countrj' still seemed to be that the 
wife's separate estate would be held liable for all debts which 
she by implication or expressl}^ by writing or parol, charged 
thereon, even if not contracted directly for the benefit of the 
estate.^ For the wife's debts are charged in justice upon her 
separate estate, not because of her power to make a valid 
written or verbal contract, but because it is right that her 
debts should be paid.^ 

But influences were at work to bring other jurisdictions to 
reject the loose discretionary powers which English precedents 
appeared to have established against, as well as favorably to, 
the interests of married women. In jNIassachusetts, at a term 
of 1860, the Supreme Court, called for the first time to ex- 
ercise full equity powers under a statute then recent, fol- 
lowed the rule of Yale v. Dederer, in a similar case of married 
women's suretyship.^ The English chancery itself, finding 
occasion in 1861 to consider the subject of separate estate 

White V. Story, 43 Barb. 124; Mer- ?;. Grumpier, 20 Tex. 374; Phillips v. 

chants' Bank v. Scott, 50 Barb. 641. Graves, 20 Ohio St. 871 ; Avery v. Van- 

1 Todd V. Lee, 15 Wis. 365. sickle, 35 Ohio St. 270. 

2 Pentz V. Simonson, 2 Beasl. 232 ; s Cummins v. Sharpe, 21 Ind. 3.31 ; 
Grapengether v. Fcjervary, 9 Iowa, Pentz v. Simonson, 2 Beasl. 2.32 ; Glass 
163; Rogers v. Ward, 8 Allen, 387; r. Warwick. 40 Penn. St. 140. But see 
Mayo V. Hutchinson, 57 Me. 546; Ma- Maclay v. Love, 25 Cal. 367 ; Hanly v. 
jor V. Symmes, 19 Ind. 117; Oakley v. Downing, 4 Met. (Ky.) 95. 

Pound, "l McCart. 178; ISIiller v. New- * Willard v. Eastham, 15 Gray, 328. 

ton, 23 Cal. 554 ; 2 Kent Com. 164 ; The volume of Reports containing this 

2 Story Eq. Juris. §§ 1398, 1401, See opinion was not, however, published 

Koontz V. Nabb, 16 Md. 549 ; Knox v. before 1869. 
Jordan, 5 Jones Eq. 175 j McFaddin 

206 



CHAP. Xr.] DOMIXION: WIFE's STATUTORY PEOPERTY. § 144 

liability for a wife's unbeneficial dealings,^ showed a new 
inclination to discriminate for the protection of a wife's sepa- 
rate estate in such instances. On the whole, therefore, while 
the lines of American and English decisions of late do not 
run parallel, and States themselves are discordant as to 
burden of proof and as to admitting or denying the New 
York and Massachusetts doctrine, — some States holding it 
immaterial in equity whether the wife's debt be evidenced by 
a written instrument or parol promise,^ — the tendency on 
both sides of the water is towards the conclusion that the 
debts of a married woman having separate property are only 
to be surely charged by a court of equity upon that separate 
property, and payment enforced out of it, when it was con- 
tracted by her for its benefit, or expressly made a charge 
thereon or expressly contracted on its credit;^ and, of 
course, to the extent only to which the wife's power of dis- 
posal may go.'* 

§ 144. Combined Tests ; Benefit and Express Intention. — 
The equitable rule in which American cases, together with 
the latest English cases,^ generally agree, whether with refer- 
ence to the equitable or statutory separate property of the 
wife, is, that the separate estate of a married woman becomes 

1 That is, for buying stock in trade Elliott, 7 C. E. Green, 127 ; Maguire 
for her separate business. This case v. Maguire, 3 Mo. App. 458 ; Hodson 
was Jolinson v. Gallagher, 3 De G. F. v. Davis, 43 Ind. 258 ; Chatterton v. 

6 J. 494 ; supra, § 135. Young, 2 Tenn. Ch. 768 , Nelson v. 

2 Miller v. Brown, 47 Mo. 505. Miller, 52 Miss. 410. But other cases 
8 See supra, § 135 ; Armstrong v. are to the contrary. Metropolitan 

Koss, 5 C. E. Green, 109; Kantrowitz Bank v. Taylor, 62 Mo. 338; Mayo v. 

V. Prather, 31 Ind. 92 ; Hasheagan v. Hutchinson, 57 Me. 546 ; supra, p. 206. 

Specker, 36 Ind. 413 ; Perkins v. Elliott, The rule is regarded as settled in New 

7 C. E. Green, 127 ; Patrick v. Littell, York, that, in order to charge the estate 
36 Ohio St. 79, and authorities cited ; of a married woman with a debt not 
Westgate v. Munroe, 100 Mass. 227 ; contracted for the benefit of her sepa- 
Nash V. Mitchell, 71 N. Y. 199 ; Wilson rate estate, the intent to charge such 
V. Jones, 46 Md. 349 , Wallace v. Fin- estate, where the obligation is in writ- 
berg, 46 Tex. 35 ; Williams r. Hugunin, ing, must be expressed in the instru- 
69 111. 214 ; Stilwell v. Adams, 29 Ark. ment. Yale v. Dederer, 68 N. Y. 329. 
346 ; Pippen v. Wesson, 74 N. C. 437. * See Hix v. Gosling, 1 Lea, 560. 

The doctrine of Yale v. Dederer, For numerous applications of this new 

whether by statute or judicial decision, rule, see Schoul. Hus & Wife, § 258, 

finds more direct support from Cozzens and cases cited. 

V. Whitney, 3 R. I. 79 ; Jones v. Cros- 5 Supra, § 135. 
thwaite, 17 Iowa, 393 ; Perkins v. 

207 



§ 145 THE DOMESTIC RELATIONS. [PAllT II. 

chargeable with the due performance of her engagements or 
obligations made or incurred upon its express credit or for its 
benefit. 1 Benefit is not the sole test ; but, to the extent of 
her power of disposition over her separate estate, the wife 
may charge it with such engagements as she sees fit to make, 
provided the evidence of intention be satisfactory (upon 
which point States differ), and provided, of course, that the 
transaction was voluntary on her part, and not fraudulently 
procured. 

In order to charge the separate estate of a married woman 
with a debt, as the cases now to be examined will show, a 
specific agreement to that effect is not indispensable ; but the 
intent, or tlie creditor's right to procure sucli charge, may be 
inferred from the surrounding circumstances.^ 

§ 145. Whether Wife may Bind as Surety or Guarantor. — • 
Where a married woman having separate estate executes a 
promissory note as surety for another, such estate is presum- 
ably charged with its payment in Ohio, Maine, Missouri, 
and some other States. But the rule, as we have seen, is 
(or was lately) otherwise in New York, and JNIassachusetts, 
and New Jersey, and the same may be said as to Georgia, 
Tennessee, Nebraska, and other States. In Louisiana a mar- 
ried woman may bind herself as surety for any one except 
her husband. 3 

A married woman's promissory note does not, as a rule, 
secure her husband's debts, nor does she, by executing it, 
bind herself lawfully as his surety or guarantor on a contract 
not relating to her separate estate, nor for its benefit, so as to 
render herself liable to suit.'* The same may be said, though 
perhaps with more reserve, of her undertakings for the bene- 
fit of third parties ; as a mere accommodation indorser, for 
instance.^ The tendency of some of the late cases is to ex- 

1 Patrick v. Littell, 36 Ohio St. 79. numerous cases cited in Schoul. Hus. & 

2 Conlin v. Cantrell, 64 N. Y. 217; Wife, § 260. 

Harsliberijer v. Alger, 31 Gratt. 52. 5 Shannon v. Canney, 44 N. H. 592; 

' SchouL Hus. and Wife, § 260, and Crane r. Keiiey, 7 Allen, 250 ; Koiin v. 

cases cited. Russell, 91 111. 138 ; Bailey v. Pearson, 

4 Parker r. Simonds. 1 Allen, 258 ; 9 Post. 77 ; Lytle's Appeal, 36 Penn. 

Shannon v. Canney, 44 N. H. 692, and St. 131 ; Peake v. La Baw, 6 C. E. 

Green, 269 ; Bauer v. Bauer, 40 Mo, 61. 
208 



CHAP. XI.] DOMINION: WIFE'S STATUTORY PEOPERTY. § 146 

empt promissory notes which are drawn jjaj-able to a married 
woman or order from all liability for the husband's engage- 
ments ; a presumption being thus afforded that the money is 
due to her and not to her husband.^ 

§ 146. Inquiry into Consideration Pertinent ; Promissory Note, 
Bond, &o. — Inquiry into consideration is always pertinent 
under the equity rule, and in States where tlie wife is not 
invested with plenary power of legal disposition under ap- 
propriate statutes. This applies to the wife's promissory 
note, which, as the law stands, apart from statute, cannot be 
a safe investment for any one ; for its value consists in the 
proof that it was a contract on her part, and a binding con- 
tract, relative to her separate property, within the general 
rule. Even in Massachusetts, where the wife's mortgage 
on real estate duly executed is upheld, a note secured by it, 



1 See Cowlcs v. Morgan, 34 Ala. 
535; Lewis v. Harris, 4 Met. (Ky.) 353; 
Chapman v. Williams, 13 Gray, 416; 
Paine v. Hunt, 40 Barb. 7i>; Tooke v. 
Newman, 75 111. 215. Since the second 
decision in Yale v. Dederer, the New 
York statute of 1860 provides that any 
married woman possessed of real estate 
as her separate property may bargain, 
sell, and convey such property, and 
"enter into any contract" in reference 
to the same. By way of construing 
this statute, together with the prior 
acts of 1848 and 1849, the New York 
Court of Appeals has charged a mar- 
ried woman as party without consider- 
ation to a promissory note, where she 
added, as promisor or special indorser, 
express words charging the payment 
of the note on her separate property. 
Corn Exchange Ins. Co. v. Babcock, 
42 N. Y. 613. She may therefore now 
become a surety or guarantor, by force 
of statute, not only in New York but 
in some other States, though the stat- 
ute of frauds must apply to her oral 
promise to be liable for another. Wool- 
sey V. Brown, 74 N. Y. 82; Hart v. 
Grigsby, 14 Bush, 542 : Northwestern 
Life Ins. Co. v. Allis, 23 Miim. 337. 

In New Jersey, on the other hand, 
14 



where no such power was given under 
statute for the married woman to dis- 
pose of her separate property as has 
been conferred by the New York legis- 
lature, equity has refused to recognize 
any power in a married woman, inde- 
pendently of appropriate legislation, to 
charge her separate statutory estate 
by any writing, even though it contain 
words which show a clear intention to 
bind such estate, except by a mortgage 
acknowledged as required by law, or 
for debts contracted for the benefit of 
her separate estate, or for her own 
benefit on the credit of it ; and hence 
it declines to impose a lien on the 
wife's separate estate because of her 
note as surety, even though by ex- 
press words she charges the payment 
of that note on her separate property. 
Perkins v. Elliott, 7 C. E. Green, 127 ; 
Kohn V. Russell, 91 111. 138 ; Dunbar v. 
Mize, 53 Ga. 435. In other States the 
wife's capacity to make a contract of 
suretyship or guaranty is still denied. 
Russel V. People's Savings Bank, 39 
Mich. 671. And quite generally her 
simple indorsement of a bill or note is 
held to be inoperative beyond divest- 
ing her of a title therein. Moreau v. 
Branson, 37 Ind. 195. 

209 



§ 1-17 THE DOMESTIC KELATIONS. [PART 11. 

if for unbeneficial consideration, such as the husband's in- 
debtedness, could not be enforced.^ But the Latest legislation 
in Massachusetts does not require the consideration of a 
wife's contract to enure to her own benefit, and her joint 
note with her husband, or her indorsement, binds her to 
quite or nearly the same extent as that of any single 
woman.^ 

But whether by promissory note, bond, oral or written 
promise, the instrument and the proof, taken together, must 
disclose the intention ^ to charge her separate estate expressly, 
or else some beneficial object for which the money was raised. 
If a loan is made to the wife, the purpose of that loan must 
be established by the lender as the test of his right to re- 
cover.* So, too, if she gives a bond, Avhether as surety or 
otherwise,^ or signs or indorses a promissorji- note.^ And in 
some States, even in equity, as to her properly executed con- 
veyance of real estate.'^ But, on the other hand, the general 
property rights of married women being now recognized by 
sundry statutes, their right in equity to make contracts affect- 
ing their property is no longer limited to property settled 
foi'mally to a sole and separate use ; and although in numer- 
ous instances statutory requisites for making the contract 
binding in law may be wanting, equity will bind her prop- 
erty, nevertheless, where she or her estate has received the 
benefit of the transaction.^ We speak here with a constant 
reservation oifeme sole liabilities acquired under local statutes 
which may affect all such issues.^ 

§ 147. Equity charges Engagement on General as well as 
Specific Property. — Equity will charge a debt, and even one 

1 Heburn v. Warner, 112 Mass. 271. * Way v. Peck, 47 Conn. 23; Viser 

And see Wright v. Dresser, 110 Mass. v. Scruggs, 49 Miss. 705. 
51. 5 Gosraan v. Cruger, 69 N. Y. 87. 

~ Major V. Holmes, 124 Mass. 108 ; ^ Cases supra ; Flanders o. Abbey, 

Kenwortby v. Sawyer, 125 Mass. 28; 6 Bis. 16; Conrad v. Le Blanc, 29 La. 

Goodnow V. Hill, 125 Mass. 587. Ann. 123. 

3 The presumption is that a contract ^ Sutton v. Aiken, 62 Ga. 733. 

entered into by a married woman hav- ^ Donovan's Appeal, 41 Conn. 551. 

ing a separate estate, for its benefit or ^ As to evidence in such cases, see 

for her exclusive benefit, was con- Schoul. Has. & Wife, § 262. 
tracted upon the credit of her estate. 
Williams v. King, 43 Conn. 569. 

210 



CHAP. XI.] DOMINION: WIFE's STATUTORY PROPERTY. § 148 

with mortgage or other collateral security upon specific prop- 
erty, upon the wife's separate property generally, so long as 
the debt was contracted for the benefit of the wife's separate 
property.^ At law, of course, there may be no such remedy ; 
and yet it should be borne in mind that local legislation fre- 
quently extends the legal rights of a married woman in this 
same direction. 

§ 148. Married Woman's Executory Promise ; Purchase on 
Credit. — In oreneral it is held that a married woman cannot 
become personally liable on her general or executory promise 
except it concern expressly, under general rules, her benefit 
or her separate estate. Hence a note given by her upon an}^ 
other consideration is void,^ even though it be in the hands 
of a bona fide holder.^ The wife's bond for payment of money 
does not bind her personally.'* The wife cannot become a 
general borrower, even though she give a promissory note or 
security in the same connection.^ Her general engage- 
ments, in a word, without the scope of the general rules we 
have stated, will create no charge upon her separate property 
enforceable in equity.^ Some States, however, under their 
liberal enabling acts, repudiate such restrictions upon the jus 
disponendi? 

There is some difficulty in the purchase, by a married 
woman, of property, whether real or personal, on credit, 
arising out of the circumstance that she cannot make a con- 
tract for payment which will be personally binding.^ There 



1 Armstrong v. Ross, 5 C. E. Green, ^ See Allen v. Fuller, 118 Mass. 402 ; 
109. Knapp v. Smith, 27 N. Y. 277. 

2 Kenton Ins. Co. v. McClellan, 43 3 Jn New Hampshire it was held 
Mich. 564 ; Pippen v. Wesson, 74 N. C. that a married woman could not, under 
437 ; Stokes v. Shannon, 55 Miss. 583. the statutes as tliey stood a few years 

3 Kenton Ins. Co. v. McClellan, 43 ago, make a contract for money or 
Midi. 504. property in anticipation of the pur- 

« Huntley v. Whitner, 77 N. C. 392. chase of separate estate ; and hence 
3 O'Daily v. Morris, 31 Ind. Ill ; tliat her note given for money bor- 
Way V. Peck, 47 Conn. 23 ; Viser i-. rowed, wherewith to make such pur- 
Scruggs, 49 Miss. 705. chase, was void. Ames v. Foster, 42 
6 Williams v. Hugunin, 69 111. 214; N. H. 381. But see later statutes of 
supra, § 144 : Huyler v. Atwood, 26 N. this State. Batchelder v. Sargent, 47 
J. Eq. 504 ; Stillwell v. Adams, 29 Ark. N. H. 262 ; Blake v. Hall, 57 N. H. 
346. 382. See also Thompson v. Waller, 

211 



§ 149 THE DOMESTIC RELATIONS. [PART II. 

is mucli logical confusion on this point ; and the true equitj^ 
rule appears to be to regard not so much the credit as the 
consideration of that credit, whether it were for her benefit 
or on express credit of the separate property. Where the 
wife cannot be sued upon her promise to buy upon credit, 
she will not in equity be allowed to decline and yet keep the 
property too ; and hence lands or personal property sold her 
on her credit, and for the benefit of her separate estate, have 
been treated as subject to the vendor's lien, even though the 
notes she gave by way of executory contract could not, as 
such, be enforced against her.^ And, once again, it is 
asserted, and quite fairly, that the sale to a married woman 
on credit is a voidable contract on her part ; that she may 
either recede from the bargain and claim its annulment, or 
allow it to stand with a right in the vendor to subject the 
specific property to tlie payment of the debt.^ 

§ 149. Married "Woman's Ov^nership of Stock ; Employment 
of Counsel. — Transfers of a married woman's stock in a cor- 
poration require, under some statutes, the husband's written 
assent or joinder ; under others, again, she may convey as if 
sole. After her transfer without observance of such require- 
ments, she may, upon information of her legal rights, obtain 
a retransfer in equity, notwithstanding subsequent purchasers 
have intervened.'^ 

85 111. 197. But on the other hand, the penter v. Mitchell, 54 111. 126 ; Hunter 

New York doctrine is that she ma)^ v. Duvall, 4 Bush, 438 ; Smith v. Doe, 

purchase property on credit; and if the 56 Ala. 45G ; Boland i-. Klink, G3 Ga. 

vendor will run the risk of being able 447. 

to obtain payment of the consideration ^ Nicholson v. Ileiderhoff, 50 Miss, 

of the sale, the transfer remains valid, 56. See further, Schoul. Hus. & Wife, 

and no estate will pass to the husband, § 264. 

whether the wife had previously any The current of negative authority 
separate estate or not. Darby v. Calli- on this point turns much towards the 
gan, 16N. Y. 21; Knapp v. Smith, 27 purchase of real estate by the wife; 
N. Y. 277. So in other States. Ciiap- and, upon what ought to be deemed 
man v. Foster, 6 Allen, 136 ; Shields v. more fundamental reasons than those 
Keys, 24 Iowa, 298. And her separate of cash or credit, it is held that a mar- 
estate is in fact charged, under suit- ried woman is incapable of acquiring 
able circumstances, by her purchase real property to her separate use under 
on credit, as we have already seen, such circumstances. This, however, 
Siiprn, § 145. is by no means a uniform doctrine. 

1 Pemberton v. Johnson, 46 Mo. Schoul. Hus. & Wife, § 265. 
342; Bruner v. Wheaton, ib. 363; Car- ^ Merriam v. Boston R., 117 Mass. 

212 



CHAP. XI.] DOMINION: WIFE's STATUTORY PROPERTY. § 150 

In Rhode Island it is held that compensation of the 
wife's solicitor for prosecuting a suit in equity regarding her 
separate leaseholds caunot be recovered from her separate 
estate.^ As to legal fees for the wife's divorce, some 
States still disincline to charge her estate, in absence, at all 
events, of an express undertaking on her part to that effect.^ 
But in New York, professional services rendered a married 
woman, as in collecting demands arising out of transactions 
permitted her by the statute, are recoverable under the gen- 
eral rule against her separate estate, as rendered by her pro- 
curement on its credit and for its benefit.^ Contracts by the 
wife for employing counsel in her property suits are in other 
States sustained more or less liberally, as in Indiana* and 
Mississippi.^ 

§ 150. Joinder of Husband ; Wife's Conveyances and Con- 
tracts. — The rule in many States, under the married women's 
acts, is that the husband must join the wife in contracts and 
conveyances relating to her separate property. Particularly 
is this true of transactions concerning the wife's real estate, 
upon which topic we have already spoken.^ Contracts and 
conveyances otherwise made are not considered binding.'' 
The language of the married women's acts in many States 
authorizes the inference that nothing further than tlie written 
concurrence of the husband is requisite to complete the valid- 
ity of the wife's transfer of separate personal property ; the 
voluntary conveyance of the wife with her husband passes 
her separate estate, real or personal ; nor is the husband's 
joinder always essential to her transfer of personal property.^ 
And in some States the wife's sole deed of her separate real 
estate is sufficient to pass her entire interest ; ^ though, so 

241. See, further, Schoul. Hus. feWife, Major v. S.ymmes, 19 Ind. 117 ; Miller 

§ 268. „. Hine, is'ohio St. 565 ; Schoul. Hus. 

1 Cozzens v. Whitney, 3 R. I. 79. & Wife, § 269, and cases citetl. 

2 Pfirsliing V. Falsh, 87 111. 260. 8 Trader i-. Lowe, 45 Md. 1. 

3 Owen V. Cawley, 36 N. Y. 600. 9 Springer v. Berry, 47 Me. 330 ; 

4 Major V. Synimes, 19 Ind. 117. Farr v. Sherman, 11 Mich. 33; Hale v. 
6 Porter v. Haley, 55 Miss. 6Q. Christy, 8 Neb. 264; Libby v. Chase, 
6 S'ipm, § 133. 117 Mass. 105 ; Beal v. Warren, 2 Gray, 
^ Wright V. Brown, 44 Penn. St. 447. 

224 ; Pentz v. Simonson, 2 Beasl. 232 ; 

213 



§ 150 THE DOMESTIC RELATIONS. [PAET II. 

antagonistic is this to the old common law, that a clearly 
enabling statute should be required. ^ 

Following the spirit of recent legislation, some American 
courts now hold the wife liable on her covenants contained 
in a conveyance of her separate lands ;^ or her agreement to 
assume a mortgage when taking a conveyance of lands so 
encumbered.'^ So specific performance is decreed against her 
on her written promise to convey ; provided the contract be 
executed with the formalities requisite in her conveyance.* 
And equity will not permit the wife to avoid a sale without 
refunding the purchase-money.^ Under late Massachusetts 
statutes, moreover, a married woman may bind herself by her 
separate contract for the purchase of real estate.^ In other 
States her ratification of a defective conveyance, whether 
directly or by acts presumptive, is pronounced valid.'^ All this, 
of course, is contrary to the old rule, which in many parts of 
the United States still obtains to a greater or less degree.^ 

A wife who joins suitably with her husband or trustee in 
a conveyance of her separate or general property, so as legally 
to convey it in conformity with statute, cannot afterwards 
assert her equitable title so as to avoid altogether or change 
from an absolute to a security title, as against a bona fide 
purchaser for value, having no notice of her equitable claim ;^ 
nor, according to the growing opinion, assert a present or sub- 
sequent title after duly conveying her entire interest.!*^ The 
recitals of her acknowledgment in the magistrate's certificate 
may be relied upon by a bona fide purchaser or mortgagee.!^ 

1 See further, Schoul. Hus. & Wife, ^ Faucett v. Currier, 109 Mass. 79. 
R 269. For the New Jersey rule, see Pierson 

2 Basford v. Peirson, 7 Allen, 524; v. Lum, 25 X. J. Eq. 390. 

Gunter v. Williams, 40 Ala. 561 ; Rich- • Spafford v. Warren, 47 Iowa, 47. 

mond V. Tibbies, 26 Iowa, 474. 8 Botsford y. Wilson, 75 111. 133 ; Stid- 

3 Huyler v. Atwood, 26 N. .J. Eq. 504. ham v. Matthews, 29 Ark 650 ; supra, c. 
And see' Fenton ;;. Lord, 128 Mass. 466 ; 6 ; Gore v. Carl, 47 Conn. 291. 
Coolidge I'. Smith, 129 Mass. 5-54. » Pepper v. Smith, 54 Tex. 115; 

4 Woodward r. Seaver, 38 N. H. 29; Davidson v. Lanier, 51 Ala. 318; Co- 
Baker V. Hathaway, 5 Allen, 103. See megys v. Clarke, 44 Md. 108. 
Rumfelt V. Clemens, 46 Penn. St. 455; ^'> Knight v. Thayer, 125 Mass. 25; 
Stevens i-. Parish, 29 Ind. 260; Love ;;. King v. Rea, 56 Ind. 1. But see Bar- 
Watkins, 40 Cal. 547. ker v. Circle, 60 Mo. 2-58. 

6 KoUs V. De Lever, 41 Barb. 208. " Singer Man. Co. v. Rook, 84 Penn. 

214 



CHAP. XI.] DOMINION: WIFE's STATUTORY PROPERTY. § 151 

Under some married women's acts a lease to her, and its 
covenants, as for rent or taxes, are held binding upon the wife ; ^ 
and so, too, a lease from her.^ 

§ 151. Improvements, Repairs, &c., on "Wife's Lands; Mechan- 
ics' Liens. — Upon the ground that the wife's separate estate 
should be bound by contracts for its benefit, or upon its ex- 
press credit, her debts for improvements upon lands con- 
veyed to her sole and separate use have been enforced in 
several late instances.^ So, too, the joint contract or joint 
note of herself and husband, or in some States her sole note 
or sole contract, for lumber and materials to be used thereon. 
It is the declared rule of many States that the husband 
cannot of his own act, and without his wife's consent, sub- 
ject the latter's separate land to debts for improvements, or 
subject it to a mechanic's lien.'* But the mechanic's stat- 
utory right of lien generally extends to a married woman's 
lands where she contracted in person or by agent, and per- 
haps, too, where the contract was for the benefit of the land.^ 
A husband's bona fide investment of money in improvements 
upon his wife's estate cannot be subjected to satisfaction of 
the claims of his creditors. 

Apart from permanent improvements, a married woman's 
real estate may well be rendered liable for repairs made to 
her separate estate at her own request, and as necessary for 
its due preservation and enjoyment. 

Independently, however, of enabling statutes, the written 
contract of a married woman, by which she acknowledges an 
indebtedness for materials and labor used to improve her 
separate estate, is void at law.^ 

St. 442 ; Marston v. Brittenham, 76 111. Fowler v. Seaman, 40 N. Y. 592 ; Car- 

611; Conn. Life Ins. Co. v. McCor- penter y. Leonard, 5 Minn. 155; Schoul, 

mick, 45 Cat 580 ; HomcEopathic Life Hus. & Wife, § 272. 
Ins. Co. V. Marshall, .'32 N. J. Eq. 103. * Brians v. Titus, 7 R. L 441 ; Spin- 

1 Wortliingtonr.Cooke, 52Md.2n7; ning v. Blackburn, 13 Ohio St. 131; 
Harris v. Williams, 44 Tex. 124 ; Albin Schoul. Hus. & Wife, § 272. 

V. Lord, 39 N. H. 196. 5 Vail v. Meyer, 71 Ind. 159 ; Wood- 

2 Schoul. Hus. & Wife, § 271, and ward v. Wilson, 68 Penn, St. 208 ; An- 
cases cited ; Child v. Sampson, 117 derson v. Armstead, 69 111. 452 ; Marsh 
Mass. 62; Douglass v. Fulda, 50 Cal. v. Alford, 5 Bush, 892; Schoul. Hus. & 
77. Wife, § 272, and cases cited. 

3 Conway v. Smith, 13 Wis. 125 ; e Williams v. Wilbur, 67 Ind. 42. 

215 



§ 153 THE DOMESTIC KELATIONS. [PART II. 

§ 152. Mortgage of Wife's Lands. — The husband cannot 
mortgage his wife's separate property for his individual debt ; ^ 
for it is a general principle that the wife's separate property 
cannot be made liable for the debts of her husband or others 
without her assent.^ But a mortgage given by a married 
woman upon her separate estate, acknowledged in conformity 
with the statute, and with the joinder of the husband, is a 
valid security and capable of enforcement; not alone where 
she had it mortgaged to secure her own or her husband's 
debt, but also, in a case free from fraud or undue influence, 
where it was mortgaged for the benefit of a third person.^ 

But in all such cases the wife's rights as surety are care- 
fully guarded ; and the husband cannot pervert the security 
to her detriment, nor bind her b}' his own agreement for ex- 
tension or discharge. And, on the other hand, where she is 
a mortgagee in her own right, the husband cannot alone re- 
ceive payment and satisfaction and discharge the mortgage.* 
The creditor's agreement of defeasance accompanying the 
transaction, or covenants on his part, must be faithfully ob- 
served;^ and as to other security her rights are the usual 
ones.^ It must be remembered that in certain States a con- 
servative policy is still pursued, so as to prohibit the wife's 
mortgage to a greater or less extent, and with reference, per- 
haps, to the beneficial nature of the consideration.'^ 

§ 153. Wife's Separate Property ; Husband as Managing 
Agent. — The undoubted right of the wife, on general princi- 
ples, to treat her husband as the trustee of her separate 
propert}', has given rise, under the married women's acts, to 
perplexing questions as between herself and his creditors. 
In New York, her privileges in this respect are carried very 
far ; for she may employ her husband as her managing agent 
to control her property, without subjecting it to the claim of 

1 Patterson v. Flanagan, 1 Ala. s. c. * McKinncy v. Hamilton, 51 Penn. 
427. St. 63. 

2 Hutcliins V. Colby, 43 N. H. 159; ^ Lomax v. Smyth, 50 Iowa, 223. 
Yale V. Derlerer, 18 N. Y. 265 ; Johnson 6 Wilcox v. Todd, 64 Mo. 388. 

V. Runyon, 21 Ind. 115. '^ Bowers v. Van Winkle, 41 Ind. 

3 See Schoul. Hus. & Wife, § 274, 432 ; Lippincott v. Mitchell, 91 U. S. 
and cases cited. Supr. 767. See further, on this subject. 



Schoul. Hus. & Wife, §§ 276, 277. 



216 



CHAP. XI.] DOMINION: WIFE's STATUTORY PROPERTY. § 1-54 

his creditors ; the application of an indefinite portion of the 
income to his support does not impair her title to the prop- 
erty ; and neitlier lie nor his creditors Avill acquire an interest 
in the property through his services thus rendered.^ She 
may give him a power of attorney and require him to pursue 
its terms carefully.^ In Illinois, too, it is well recognized 
that the wife may make her husband her agent to collect 
debts due her, to receive from others the income of her 
estate, and, like other agents, to manage and control her 
separate property in her name.^ Such, too, is the rule of 
certain other States, to the practical disadvantage of the hus- 
band's creditors, as well as for the wife's protection against 
her husband.^ 

The husband's agency, whether created under suspicious 
circumstances or not, as regards the public, is, like other 
agencies, a matter of fact for legal ascertainment upon all 
the proof. The courts in Illinois go so far as to hold that the 
husband's dealings with his wife's separate property will now 
be presumed, in the absence of proof to the contrary, to be in 
the character of agent, even as to the proceeds and income 
thereof; and hence rendering him liable to account like 
other agents, with allowance of his reasonable compensation, 
but so as to require liim to establish any claim he may make 
of a gift or legal transfer to him, by due proof that the wife 
so assented and understood ; in short, that tlie common- 
law rights of the husband to the wife's property are swept 
away.^ But in such a presumption other States by no means 
concur.^ 

§ 154. Husband as Managing Agent ; Services, &c. ; Hus- 
band's Creditors. — It seems to be the well-settled American 
doctrine that, by working upon the wife's lands, the husband 
acquires no beneficial interest therein which can be enforced 

1 Buckley v. Wells, 33 N. Y. 518; 6 Patten v. Patten, 75 III. 446. 
Knapp I'. Smith, 27 N. Y. 277. ^ Eystra v. Capelle, Gl Mo. 578. 

2 Nash V. Mitchell, 71 N. Y. 199. See, further, Aklridse v. Muirhead, 
8 Patten v. Patten, 75 111. 446. 101 U. S. Supr. 397 ; Paine v. Fair, 118 
* Altlridge v. Muirhead, 101 U. S. Mass. 74. The husband's agency is 

Supr. 397 ; Coleman v. Semmes, 56 considered at length in Schoul. Hus. 
Miss. 321 ; Wells v. Smith, 54 Ga. 262. & Wife, §§ 277-280. 

217 



§ 154 THE DOMESTIC KELATIONS. [PART II. 

ill equity on behalf either of himself or his creditors, in 
absence of a definite agreement for compensation ; unless, 
possibly, it could be shown to exceed in value the cost of 
supporting the whole family.^ The crops cannot be attached 
b}' his creditors.^ Nor the betterments, buildings, and rents.^ 
Nor is his use, upon his wife's farm, of teams bought with her 
money, a conversion in any such sense as to render them 
attachable for his debts.* 

With the assent of the husband and father, the labor of the 
wife and children may be bestowed upon the separate prop- 
erty of the wife, and thus enure to their benefit. There is no 
known rule of law which requires the husband and father to 
compel his wife and children to work in the service of his 
creditors.^ And it is held that the husband may stipulate, 
though insolvent, that the product of his own labor shall be 
appropriated to his wife's separate use.*^ If permitted to be 
maintained upon his wife's property, he does not necessarily 
acquire a title to the property or its products merely by be- 
stowing his voluntary labor upon it.'^ And a similar prin- 
ciple may be applied to a wife supported from her husband's 
property.^ 

But it is held that the husband's occupation and cultivation 
of his wife's lands with her assent may be considered as be- 
stowed for the common benefit of the family, or so as to give 
him the right to the products of his own toil like that of any 
tenant ; '-* and that when his own skill and service were the 
chief source of emolument, the wife ought not to claim all as 

1 Buckley v. Wells, 33 N. Y. 518 ; *^ Hodges v. Cobb, 8 Rich. 50. But 
Webster v. Hildreth, 33 Vt. 457 ; see Penn v. Whitelieads, 12 Gratt. 74. 
Clieuvcte V. Mason, 4 Greene (Iowa), "^ Rush r. Vouglit, 55 Penn. St. 437; 
231 ; Betts v. Betts, 18 Ala. 787 ; Com- Boss v. Gomber, 23 Wis. 284 ; Merrick 
monweahh u. Fletcher, 6 Bush, 171. v. Pluniley, 99 Mass. 5G6 ; Gage v. 

2 Mclntyre v. Knowlton, 6 Allen, Dauchy, 34 N. Y. 2'J3 ; Hazelbaker v. 
565 ; Lewis v. Jolins, 24 Cal. 98 ; Allen Goodfellow, 64 III. 238 ; Feller v. Alden, 
V. Higlitower, 21 Ark. 316. 23 Wis. 301. 

3 Wiiite I.'. Hildreth, 32 Vt. 265; « Burcher y. Ream, 68 Penn. St. 421. 
Goss ?;. Caliill, 42 Barb. 310; Wilkinson See Dean v. Bailey, 50 111. 481, as to 
V. Wilkinson, 1 Head, 305; Robinson the liability of a farm and stock, wliere 
V. Hoffman, 15 B. Monr. 80. the husband's control is not of a char- 

* Spooiier V. Keynolds, 50 Vt. 437. acter inconsistent witii the common in- 
5 Johnson v. Vail, 1 McCart. 423. terests of himself and wife. 

9 Elijah V. Taylor, 37 111. 247. 

218 



CHAP. Xr.] DOMINION: WIFE's STATUTORY PROPERTY. § 155 

lier own against him.^ Moreover, if by contract express or 
implied the wife is indebted to her husbiiud for his services as 
managing agent, it is held that she is subject to garnishment 
at the instance of his creditors.^ 

§ 155. Husband's Dealings with "Wife's Property ; Gift, Fraud, 
Use of Income, &c. — Where the question arises, then, whether 
the husband is enjoying the wife's property by way of gift 
from her, or as her managing attorney, it must be determined 
by evidence. In either case the advantage seems to be with 
husband and wife in all controversies with the creditor. The 
general rule still prevails, however, that money transactions 
between husband and wife should be free from fraud, and 
not prejudicial to pre-existing creditors of the husband. The 
presumptions are not equally balanced in the different States. 
But presumptions of a gift from the wife are not to be strongly 
favored where the husband is held out to others as her agent.^ 
So gifts of income would be more readily presumed than gifts 
of capital. Her title is generally open to inspection, and may 
be challenged for fraud.* But it is fair to say that whenever 
she gives her property to him without agreement for any re- 
payment, but for investment in his business, and to afford 
him credit with the world, and he so invests it with her 
knowledge and acquiescence, or takes title to real estate in 
his own name, with her acquiescence, for a similar purpose, 
his bona fide creditors ought not, especially when his time 
and energies were of essential value to it, and changes of 
material or investment are such as to render identification of 
the property as hers impossible, to suffer afterwards, who 
had relied upon this capital, because of her attempt to recall 
the gift when she finds him embarrassed ; not even a special 
partner would have a right to do so.^ Furthermore, an invest- 

1 Glidden v. Taylor, 16 Ohio St. 509. 1 W. Va. 502 ; Logan v. Hall, 19 Iowa, 

2 Keller v. Mayer, 55 Ga. 406. 491 ; Bryant v. Bryant, 3 Busli, 155. 

8 See Wales v. Newboukl, 9 Mich. 5 Kuiin v. Stansfield, 28 Md. 210 ; 

45; Miller v. Edwards, 7 Bush, 394; Wortman v. Price, 47 111. 22 ; Mazouck 

Patten y. Patten, 75 111.446; Aldridge j;.NorthernIowaR. R. Co.,ol Iowa,559; 

V. Muirhead, 101 U. S. Supr. 397. Lichtenberger v. Graham, 50 Ind. 288; 

* See Schoiil. Hus. & Wife, § 281; Brooks v. Shelton, 54 Miss. 353; Ma- 

Albin V. Lord, 39 N. H. 196; Hinney v. thews v. Sheldon, 53 Ala. 136 ; Besson 

Phillips, 50 Penn. St. 382; Fox i'. Jones, v. Eveland, 26 N. J. Eq. 468. As to 

219 



§ 155 THE DOMESTIC RELATIONS. [PART II. 

ment, by the husband, of the wife's separate means and prop- 
erty, whether in purchasing real estate or personal property for 
her separate use, is valid, if the rights of creditors be not thereby 
impaired.^ But where he purchases real estate or other prop- 
erty, and procures the title in his wife's name or in trust for 
her, when largely indebted, the validity of the transfer and its 
good faith may well be called in question, especially if the 
means were not clearly furnished from her separate estate.^ 

While the wife may avoid a fraud upon her as against all 
who participated therein, it is held that a valuable creditor's 
rights cannot be prejudiced by any duress, menace, or other 
misbehavior of the husband, which procured them the wife's 
security, if it was without such creditor's instigation, knowl- 
edge, or consent.^ It is otherwise if the hitter's instigation, 
knowledge, or consent appear.* But when the husband 
makes a void transfer as his wife's trustee, it is held that she 
can follow the investment into other hands.^ Or she may 
have him removed from his trusteeship for suitable cause.^ 

A husband has no right to agree secretly with the pur- 
chaser of his wife's separate property for a portion of the 
real consideration, understating the nominal consideration to 
the wife ; for this is a breach of faith as agent or trustee.'^ 
Fraud, coercion, abuse of marital confidence, can be alleged 
by the wife against an unworthy husband in support of her 
title, whether she transferred absolutely, or as security for 
his debts.^ A negotiable instrument executed b}^ or taken 
in the name of a trustee of a married woman will be regarded 



the wife's gratuitous undertaking to Nelson v. Holly, 50 Ala. 3 ; Singer 

subject her property to her husband's Man. Co. v. Rook, 84 Penn. St. 442; 

debts, the Pennsylvania rule is that Marston v. Brittenham, 7G 111. 611; 

equity will not enforce it, but leave Conn. Life Ins. Co. v. McCormick, 45 

the parties to their lesjal remedies. Cal. 480 ; Hidl i'. Sullivan, 63 Ga. 126. 
White's Appeal, 36 Penn. St. 134. * Line v. Blizzard, 70 Ind. 23 ; Has- 

1 Jackson v. Jackson, 91 U. S. Supr. kit v. Elliott, 68 Ind. 4!)3. 

122. 5 George v. Ran<iom, 14 Cal. 658. 

2 See Postnuptial Settlements, c. ^ Rainey v. Rainey, 35 Ala. 282. So 
post; Snow v. Paine, 114 Mass. 520. with any other trustee of her separate 
See, further, Sclioul. Hus. & Wife, § property. Johnson v. Snow, 5 R. I. 72. 
282. 7 Beaudry v. Felch, 47 Cal. 183. 

3 Childs V. McChesney, 20 Iowa, 8 siiarpe v. McPike, 62 Mo. 300; 
431 ; EdgTton v. Jones, 10 Mlnu. 427 ; Darlington's Appeal, 86 Penn. St. 512. 

220 



CHAr. XL] DOMINION: WIFE's STATUTORY PROPERTY. § 155 

in equity as manifesting the trust for her benefit.^ Even 
promissory notes taken in the husband's name are open to 
explanation ; and evidence aliunde may show that tlie}'" be- 
longed to the wife's sej^arate property .^ Subject, perhaps, to 
equities of bona fide third parties for consideration, without 
notice of the trust in strong instances, the wife's rights are 
protected in equity against her husband's misdealings with 
her fund.3 And if a husband holds a legal title to land in 
trust for his wife or family, his sale and transfer of the pro- 
ceeds to other land, taken without due consent in his own 
name, will not enable his general creditors to seize and appro- 
priate it for his debts.'' 

Certain States, following the English equity doctrine, 
avoid close inquisition into the husband's management of his 
wife's property, by limiting the time during which the hus- 
band's receipt of the rents, profits, or income shall charge 
him.^ It is held, too, that a wife, by allowing her husband 
for a long series of years to appropriate to his own use, or 
their joint use, the income of her separate estate, forfeits her 
right to compel him to account, until at all events she re- 
vokes such permission, and then only from the date of revo- 
cation.^ Such a rule is very desirable for preserving domestic 
peace, and ensuring the husband's estate after death against 
dubious claims ; for otherwise, as we have intimated, and 
apart from the wife's delay or her presumed assent to house- 
hold expenses or to a gift to her husband, and after deducting 
his charge for services, the husband, where regarded as purely 
an agent, is obligated to account. Even admitting, however, 
the income his, the husband may show and execute an intention 
of preserving such income as his wife's separate property.'^ 

1 Lewis V. Harris, 4 Met. (Ky.) 353. ^ Qne year from date of such receipt 

2 Buck V. Gilson, 37 Vt. 653; Con- is the Mississipj)! limitation. Hill v. 
rad V. Sliomo, U Penn. St. 193; Baker Bugg, 52 Miss. 3'J7. 

V. Gregory, 28 Ala. 54i; Fowler v. 6 Lyon j,. Green Bay R., 42 Wis. 
Rice, 31 Ind. 258. 548 ; Reeder v. Flinn, 6 Rich. 216 ; 

3 See Moulton v. Haley, 57 N. H. 184. Lishey v. Lishey, 2 Tenn. Ch. 5. 

* Shippen's Appeal, 80 Penn. St. ^ Gill v. Woods, 81 111. G4 ; Patten 

391; Porter v. Caspar, 54 Miss. 359; v. Patten, 75 111. 4415 ; Bon gard y. Core, 

Schonl. Hiis. & Wile, § 284; McConnell 82 111. 19, supra, § 141. 
V. Martin, 52 Ind. 434. 

221 



§ 157 THE DOMESTIC RELATIONS. [PAET II. 

On the whole there is and must be, throughout this transi- 
tion period, conflict in the authorities as to the effect of a 
husband's receiving the proceeds of his wife's share in inher- 
ited property, or of some sale or investment in her sole right: 
States which abide by the common law of coverture inclining 
to sustain his ancient right of reduction into possession, and 
presuming in his favor ; ^ and States, on the other hand, 
under the impress of the new legislative policy, reserving her 
title, unless she plainly and voluntarily divests herself of 
separate rights.^ 

§ 156. Married Woman as Trustee. — Appointing a married 
woman trustee may be considered objectionable (apart from 
equity rules of constructive trust) while the law yet fails to 
divest her of all coverture disabilities, so as to make her both 
efficient and responsible in the legal sense. Yet it is held in 
some States that a married woman may, under the statutes, 
hold an estate in trust, and make contracts accordingl3\3 

§ 157. Tendency as to Wife's Binding Capacity ; her Estop- 
pel. — There is now little or no limit upon the wife's legal 
capacity to bind her statutory estate to the discharge of lia- 
bilities created on account thereof, in Ohio, Wisconsin, Mas- 
sachusetts, New York, Illinois, and some other States. In 
Illinois it is said that capacity to make contracts respecting 
her separate property is an implication of law and not of 
equity, and consequently all contracts made by her within 
the scope of that legal capacity are legal contracts, and cog- 
nizable in the courts of law.^ 

As a natural result of the first modern innovations upon 
the coverture theorjs it may be observed that, while estoppel 
does not work against a married woman so readily as against 
persons sui juris^ it is held in various recent instances, and 
justly too, that where married women make agreements by 

1 Reade v. Earle, 12 Gray, 423 ; 3 Springer v. Berry, 47 IMe. 330. 
Windsor v. Bell, 61 Ga. 671 ; Nevius See Peraberton v. McGill, 1 Dr. & Sm. 
V. Gourley, 9o 111. 206 ; Jacobs v. Hes- 266. 

ler, 113 Mass. 157. * Williams v. Hugunin, 69 III. 214; 

2 Nissley v. Heisey, 78 Penn. St. Sclioul. Hus. & Wife, § 288. 
418; Penn v. Young, 10 Bush, 626; 

Meyer's Appeal, 77 Penn. St. 482. 

222 



CHAP. XI.] DOnnNioN: wife's statutoky property. § 158 

fraudulent means, with reference to their separate property, 
and thus obtain inequitable advantages, a court of chancery 
will treat them as estopped from setting up and relying on 
their coverture to retain the advantage.^ 

§ 158. Proceedings for Charging Wife's Separate Estate. — 
The married women's acts in some States make, as might be 
anticipated, a radical change in the character of the practice 
for reaching the wife's separate property. According to the 
English practice, and that prevalent now or formerly in most 
States, there was no personal judgment against a married 
woman. But a chancery decree was directed against the 
separate property of the wife, declaring the separate estate 
vested in the wife at the date of the decree, which it was 
within her power to dispose of, chargeable with the payment 
of the debt.2 The debt was not a lien upon the wife's sepa- 
rate estate until made so by decree of the court of equity, 
and the lien was by virtue of such decree.^ Under such pro- 
ceedings there was onl}^ a sort of equitable execution, the 
decree reaching only property which the wife had power to 
bind, and no personal judgment being awarded against her, — 
nothing from which direct personal liability on her part could 
be predicated. 

But under this recent married women's legislation the same 
judgment is required, with the same process for its enforce- 
ment, as would be awarded if the woman were sole ; saving, 
perhaps, the usual exemptions, and treating the wife's prop- 
erty in such case substantially as the husband's property 
might be treated were the judgment rendered against him 
and the liability his. And where such is the practice, no 
equitable circumstances can usually be alleged, calling for the 
intervention of a court of equity.* Legal attachment on 
mesne process, or by way of legal execution against a mar- 

1 Coolidge r. Smith, 129 Mass. 554 ; Ohio St. 79 ; Armstrong v. Ross, 20 N. 
Patterson v. Lawrence, 90 111. 174. See J. Eq. 109. 

further, Sclioul. Hus. & Wife, § 288. 3 j^. . Schoul. Hus. & Wife, § 289. 

2 Johnson v. Gallagher, 3 De G. F. « Stevens v. Reerl, 112 Mass. 515; 
& J. 520 ; Collett v. Dickenson, L. R. Patrick v. Littell, 36 Ohio St. 79; Cook- 
11 Ch. D. 687; Patrick v. Littell, 36 son v. Toole, 59 III. 515; Andrews v. 

Monilaws, 15 N. Y. Supr. 65. 
223 



§ 159 THE DOMESTIC RELATIONS. [PART II. 

ried woman, maybe made under such statutes ;^ or, in appro- 
priate instances, the foreign attachment or trustee process 
applied.2 Even upon her covenants the wife may, in some 
States, be sued like a single woman.^ 

On the whole, policy still disinclines to permit a personal 
judgment to be rendered against a married woman, even on 
what purports to be her personal obligation. The subjec- 
tion of the wife's property, furthermore, under these acts, 
extends to all her statutory separate estate, or, as might gen- 
erally turn out, by the changing of equitable into statutory 
estates by operation of legislation, all her separate property. 
And by this means the old distinction between the real and 
jDcrsonal separate estate becomes well-nigh obliterated.* 

§ 159. English Married Women's Act; Wife's Disposition. — 
In England the married women's property act of 1870, with 
its later amendments, indicates some change of parliamentary 
policy in the same practical direction. But the English 
courts still incline, as would the American under statutes of 
dubious import, to render the separate property of the wife 
liable by subjecting her to the ordinary process of law and 
equity.^ The wife cannot be sued alone in respect of her 
separate estate in the common-law courts, under the act of 
1870, for the price of goods sold her during coverture, but, 
as formerly, the husband must be joined.*^ 

1 See language of Hoar, J., in Wil- 5 Ex paiie Holland, L. R. 9 Ch. 
lard V. Eastliam, 15 Gray, 328. App. 307. 

2 Powers V. Totten, 42 N. J. L. 442. « Hancocks v. Lablache, 26 W. R. 

3 Worthington v. Cooke, -52 Mo. 297. 402 ; Davies v. Jenkins, L. R. 6 Ch. D. 
* For various points of modern stat- 728. 

utory practice, see Sciioul. Hus. & Wife, 
§289. 

224 



CHAP. XII.] wife's pin-money. § 160 



CHAPTER XII. 

THE wife's pin-money, SEPARATE EARNINGS, AND POWER 

TO TRADE. 

§ 160. The Wife's Pin-Money. — The wife's pin-money con- 
stitutes a feature of English marriage settlements in modern 
times. Pin-money may be defined as a certain provision for 
the wife's dress and pocket, to which there is annexed the duty 
of expending it in her " personal apparel, decoration, or orna- 
ment." 1 It differs from the wife's separate estate in being 
a gift subject to conditions, and not at her absolute disposal. 
It differs from her paraphernalia in being subject to her con- 
trol during marriage, and not awaiting the husband's death.^ 
The exact period when pin-money was first introduced into 
England is not known. Lord Brougham inclines to ascribe it 
to the feudal times.^ But there is equally good authority for 
fixing the date at the Restoration ; and the lawyers resort to 
Addison's " Spectator " in proof of the latter supposition.* 
The popular name of this provision scarcely suggests its real 
.significance ; for, so far from being a petty allowance, it is 
often of the most liberal amount imaginable.^ 

The subject of the wife's pin-money seems to have received 
little attention in this country.^ And in England few cases 
of the sort have ever arisen. It is found more convenient in 
marriage contracts to settle a certain allowance upon the 
wife by way of separate estate, which allowance is subject 

1 Per Lord Langdale, Jodrell v. 5 jri one reported English case, by 
Jodroll, 9 Beav. 45; Howard v. Digby, no means recent, £13,000 a year was 
2 CI. & Fin. 654. secured to the wife as her pin-money. 

2 Macq. Hus. & Wife, 318 ; Peachey See 2 Russ. 1, and n. to Macq. Hus. & 
Mar. Settl. 298; c. post. Wife, 318. 

3 2 Ci. & Fin. 676. 6 B„t see Miller v. Williamson, 5 
* Spectator, 295. See Peachey Mar. Md. 219. 

Settl. 300 ; Sugd. Law Prop. 165. 



16 



225 



§ 162 THE DOMESTIC RELATIOXS. [PART H. 

to the usual incidents of separate property. Decisions as to 
pin-money and separate estate are frequently confounded. ^ 

§ 161. Wife's Housekeeping Aliowance — The wife was for- 
merly supposed also to gain a title to savings out of her 
housekeeping allowance.^ So where the husband allowed 
the wife to make profit of butter, eggs, poultry, and other 
farm produce, which allowance he called her pin-money, it 
was held that she acquired a separate ownership therein.^ 
But these cases rest upon questionable authority.^ And 
more recently it has been decided that, where the wife of a 
farmer, with his knowledge and sanction, deposited the 
produce of the surplus butter, eggs, and poultry with a firm 
in her own name, and he called it " her monej^," and on his 
death-bed gave his executor directions to remove the money, 
and do the best he could with it for his wife, such evidence 
was insufficient to establish a gift between them, and that the 
husband had made neither the firm nor himself trustee for his 
wife.^ In all cases of this sort the husband's permission, he 
not having deserted her, constitutes an important element of 
the wife's title. And the mere fact that a wife is in the use 
and enjoyment of clothing, or other personal property, is 
held insufficient to establish her right to a separate estate 
therein.^ 

§ 162. Wife's Earnings belong to the Husband; Legislative 
Changes, &c. — Indeed, the \a ell-settled principle, both of law 
and equity, is that, in absence of a distinct gift from the hus- 
band, all the wife's earnings belong to him and not to her- 

1 See Lord Brougham, in Howard In other ways, too, the wife's claim 

V. Digby, 2 CI. & Fin. 670, commenting may be barred. Schoul. IIus. & Wife, 

upon 2 Roper Hus. & Wife, 138. In this § 292. 

leading case, which went to the House '^ Paul Neal's Case, Prec. in Ch. 44, 

of Lords in 1834, the whole subject re- 297. But see Tyrrell's Case, Freem. 304. 

ceives ample discussion. Its main deci- ^ Slanning w. Style, 3 P. Wins. 337 

sion was to the effect that the personal * See Macq. Hus. & Wife, 320. 

representatives of the wife could not ^ Mews v. Mews, 15 Beav. 529. See 

recover arrears. The correctness of McLean v. Longlands, 5 Ves. 78, cited 

its principle has been questioned by herein with approval. And see Rider 

some writers. In general the usual v. Hulse, 33 Barb. 264, for a similar 

equity rule against claiming more than American decision, 

one year's arrears appears to apply to ^ State v. Pitts, 12 S. C. 180; supra, 

separate estate and pin-money alike. § 82. 

226 



CHAP, xn.] wife's separate eaenings. § 162 

self.^ But by recent statutes, enacted in many of the United 
States, married women are allowed the benefits of their own 
labor and services when performed, or even contracted to be 
performed, on their sole and separate account, free from all 
control or interference of a husband.^ The English married 
women's act of 1870, moreover, recognizes the wife's right to 
her separate earnings.^ These statutes vary somewhat in 
their terms. The amount she may thus acquire is in certain 
States limited to a specific sum, and statutes sometimes dis- 
criminate so as to protect simply the wife's earnings derived 
from labor for another than her husband."^ 

The presumptions here concerning the wife's title to her 
earnings seem to be much the same as in other separate prop- 
erty purporting to belong to her.^ Questions of identity, too, 
in tracing an investment of earnings, are applicable, as in 
other cases of separate property. There is, however, appar- 
ently less favor shown by our courts to the legislative grant 
of separate earnings, than to that of acquisitions to a wife's 
separate use from other sources ; and still less, as we shall 
soon see, to statutes extending the wife's right of acquiring 
earnings to a permission to embark in business on her own 
account. The presumption is said to be, that a wife's ser- 
vices, rendered even to her own mother on a basis of compen- 
sation, were given on the husband's behalf.^ And where the 
proceeds of her earnings have been so mixed up with her 
husband's property as not to be easily distinguishable, the 
disposition is to regard the whole as belonging to the hus- 
band.'' The idea, moreover, is not favored, of permitting a 

1 For the old common-law rule, see v. Delias, 65 111. 469 ; Whitney v. Beck- 
snpra, § 81 ; Jones v. Keid, 12 W. Va. with, 31 Conn. 696. 

350; Douglas v. Gausman, 68 111. 170; 3 Supra, %l\\\ Lovell v. Newton, 

Kelly V. Drew, 12 Allen, 107; Glaze v. L. R. 4 C. P.D. 7. 

Blake, 56 Ala. 379. 4 ^n^w v. Cable, 19 Ilun, 280. 

2 See latest statutes of New York, 5 Raybold v. Raybold, 20 Penn. St. 
Massachusetts, Illiode Island, Mary- 308; Elliott v. Bently, 17 Wis. 591; 
land, Kansas, and California. And see Lainsr "• Cunningham, 17 Inwa, 510. 
Cooper V. Alger, 51 N. H. 172; Fowle « Morgan v. Bolles, 36 Conn. 175. 

V. Tidd, 15 Gray, 94 ; Tunks v. Grover, 7 Quidort v. Pergaux, 3 C. E. Green, 

67 Me. 586; Meriwether v. Smith, 44 472; McCluskey ;;. Provident Tnstitu- 

Ga. 541 ; Berry v. Teel, 12 R. I. 267 ; tion, 103 Mass. 300; Kelly v. Drew, 12 

Attebury v. Attebury, 8 Oreg. 224 ; Allen, 107. 
Larimer v. Kelley, 10 Kan. 298 ; Jassoy 

227 



§ 163 THE DOMESTIC RELATIONS. [PAUT H. 

wife to forsake the matrimonial domicile, or neglect her 
household duties, without her husband's consent, for the 
purpose of acquiring earnings for her separate use, especially 
if her husband be still legally bound to support her by his 
own labor.^ It may be added that, in general, statutes which 
authorize married women to hold property acquired by gift, 
grant, or purchase, from any person other than the husband, 
do not carry tlie wife's earnings bj' implication.^ 

Independently, therefore, of statutes which plainly secure 
to married women their separate earnings under the circum- 
stances, it is held that an agreement between the wife, with 
the knowledge and consent of her husband, and a third per- 
son, for nursing and attention, the stipulation being that she 
shall be paid what her services are reasonably worth, gives to 
the wife no title as against her husband,^ nor right to main- 
tain her separate action.* On general principles of equity, 
however, the husband may, in this country, as in England, 
create in his wife a separate estate in the proceeds of her own 
toil ; the validity of such a gift, as against creditors, being 
subject to the same rules which apply to other voluntary con- 
veyances.^ Such a gift on his part, once made, the husband 
cannot annul, by a subsequent investment of the proceeds in 
his own name.^ 

§ 163. Wife's Power to Trade ; Earlier English Rules. — The 
wife's power to carry on a separate trade is another topic, 

1 Douglas v. Gausman, 68 111.170; (N. Y.) 484. And see Skillman v. 
Mitchell V. Seitz, 94 U. S. Supr. 580. Skillman, 15 N. J. Ch. 478; Sclioul. 
But see Duncan v. Cashin, L. R. 10 C. Hus. & Wife, § 295. 

p. 5,54. 5 Pinkston v. McLemore, 31 Ala. 

2 Rider v. Hulse, 33 Barb. 264; 308; Neufville v. Thompson, 3 Edw. 
Hoyt V. White, 46 N. H. 45; Merrill v. Ch. 92; Barron v. Barron, 24 Vt. 375; 
Smith, 37 Me. 394 ; Grover v. Alcott, Richardson r. Merrill, 32 Vt. 27 ; Jones 
11 Mich. 470; Baxter v. Prickett, 27 v. Reid, 12 W. Va.350; Glaze '^ Blake, 
Ind. 400 ; Bear v. Hays, 36 111. 280. 56 Ala. 370 ; Schoul. Hus. & Wife, 

3 Woodbeck v. Havens, 42 Barb. 66. § 296. See Postnuptial Settlements, /losf, 
And this, even though the husband where the rule is more fully stated, 
makes of his house a sort of hospital, ^ Rivers v. Carleton, 50 Ala. 40; 
and his wife assists him. Reynolds v. White v. Oeland, 12 Rich. 308; Mason 
Robinson, 64 N. Y. 589. And see El- v. Dunbar, 43 IMich. 407. Wife's earn- 
liott I'. Bently, 17 Wis. 591 ; Duncan v. ings are sometimes bestowed on her by 
Roselle, 15 Iowa, 501 ; McKavlin v. statute, where the husband deserts. 
Bresslin, 8 Gray, 177. Schoul. Hus. &. Wife, § 297. See fur- 

* See Beau v. Kiah, 6 Thomp. & C. ther, as to earnings, ib. § 298. 

228 



CHAP. XII.] wife's sepahate teade. § 163 

known long ago to the law of England ; and in tins respect 
our American legislation of the present day seems to have 
been somewhat anticipated. The wife's lawful power to 
carry on a trade on her own account, independently of her 
husband, like most of her other separate privileges, is founded 
at the common law upon contracts made with her in deroga- 
tion of the husband's marital rights. It appears that a wife, 
desiring to go into business on her own account, makes an 
agreement with her husband. When the agreement is made 
before marriage, it will bind the husband and his creditors ; 
when made during the coverture, it binds the husband only, 
and is void against his creditors.^ And the husband will 
be liable for the debts, if it appeared that he participated 
with the wife in the benefits.^ Separate trading was also per- 
mitted the wife by the " custom of London ; " and herein she 
was regarded as liable to arrest and imprisonment for debt 
without her husband, and, moreover, might be declared a 
bankrupt.^ And if the husband had any concern in the busi- 
ness, the wife was not to be treated as a feme sole in respect 
of it.4 

Notwithstanding these provisions of the law, it does not 
appear that separate trading in England, prior to the inno- 
vations introduced with the married women's act of 1870, was 
ever very common.^ The difficulties in the way of establishing 
credit, and of negotiating securities, on the wife's sole behalf, 
were probably found insurmountable, even though married 
women might be found anxious to assume the responsibilities 
of trade, with its incidental imprisonment for debt. The judi- 
cial evidence of this separate trading is supplied chiefly by 



1 Macq. Hus. & Wife, 321 ; 2 Bright 3 Beard v. Webb. 2 B. & P. 97. See 
Hus. & Wife, 292 ; Lavie v. Piiillips, 3 2 Roper Hus. & Wife, 124. 

Burr. 1783; 2 Roper Hus. & Wife, * 2 Briglit Hus. & Wife, 77, 78; 

1G5, 175, and cases cited. See Antenup- Lavie v. Piiillips, 3 Burr. 1776 ; Schoul. 

tial and Postnuptial Settlements, cs. Hus. & Wife, § 300. 

post. 6 But see the recent cases of Tal- 

2 Jarman V. Wooloton, 3 T. R. 618 ; bot v. Marshfield, L. R. 3 Ch. 622; 
2 Briglit Hus. & Wife, 297; Schoul. Re Peacock's Trusts, L. R. 10 Ch. 
Hus. & Wife, §299; Barlow y. Bishop, D. 490; Ashworth v. Outram, L. R. 
1 East, 432 ; Petty i-. Anderson, 2 Car. 5 Ch. 923 ; Schoul. Hus. & Wife, 
& P. 38; Macq. Hus. & Wife, 322. § 301. 

229 



§ 164 THE DOMESTIC KELATIONS. [PART n. 

the misfortunes such trade entailed upon the women who 
embarked in it. Even where the wife Hved apart from her 
husband (a very important consideration i), and, having her 
separate estate, carried on a trade, it was doubted, in an im- 
portant case of which we have spoken elsewhere, whether 
tlie tradesman furnishing supplies had any demands upon 
that estate which equity could recognize.^ 

§ 164. "Wife's Power to Trade; American Equity Rule. — This 
doctrine of the wife's power to trade comes up anew in the 
United States of late years, with our recent policy in favor 
of the independence of married women. And the rule seems, 
apart from late legislation, to be well established in the 
United States, that the husband, in pursuance of a marriage 
contract, antenuptial or postnuptial, may confer upon his 
wife the right to trade for her exclusive benefit.^ Nor have 
the American cases uniformly insisted upon formal contracts 
for this purpose between husband and wife ; seemingly re- 
garding the question as one of mutual and bona fide inten- 
tion merely.^ The husband's assent is in general necessary, 
provided they live together ; and if they do not, different 
considerations apply.^ And apart from statute, it would 
appear to be the general rule, that unless the husband's con- 
sent that the wife carry on business in her own name is based 
upon a sufficient consideration, he may withdraw it at any 
time and assert his common-law rights.^ 

1 See Separation, post. son, 42 Penn. St. 311 ; Todd v. Lee, 16 

2 Cf. Bruce & Turner, Lord Jus- Wis. 480; Mayhew v. Baker, 15 Ind. 
tices, in Jolinson v. Gallagher, 3 De G. 254 ; Sclioul. Hus. & W^ife, passim, 
r. & J. 494. §§ 303, 304. 

3 Richardson v. Merrill, 32 Vt. 27; ^ Cropsey w. McKinney, 30Barb.47; 
Tillman v. Sliackleton, 15 Mich. 447 ; Green i-. Pallas, 1 Beasl. 2(37. 
Wieman v. Anderson, 42 Penn. St. 31 1 ; •> Conklin v. Doul, 67 III. 355 ; Crop- 
Duress V. Horneffer, 15 Wis. 195; sey f . McKinney, 30 Barb. 47 ; Todd w. 
James v. Taylor, 43 Barb. 530; Wilt- Lee, 16 Wis. 480; Richardson v. Mer-^ 
haus t;. Liidicus, 5 Rich. 326; Uhrig y. rill, 32 Vt. 27; Partridge v. Stocker, 
Horstman, 8 Bush, 172; Cowan v. 3G Vt. 108; Penn ;;. Wliitehead, 17 
Mann, 3 Lea, 229. Gratt. 503 ; King v. Thompson, 87 

4 See per Redfield, C. J., in Rich- Penn. St. 365. Some old statutes 
ardson v. Merrill, 32 Vt. 27 ; Partridge recognizing the wife as a feme sole 
V. Stooker, .36 Vt. 108 ; Penn v. White- trader appear to have existed in Penn- 
head, 17 Gratt. 503; Tillman v. Shack- sylvania and South Carolina. Schoul. 
leton, 15 Mich. 447 ; Wieman i'. Auder- Hus. & Wife, § 305. 

230 



CHAP, XII.] wife's separate TRADE. § 165 

On the other hand, in North Carolina the whole doctrine of 
separate trading is expressly repudiated.^ Indeed, our earlier 
American cases seem to have regarded with very little favor 
the doctrine that the wife, while living with her husband, 
could carry on a business of her own without rendering her 
husband liable and subjecting her stock in trade to his debts.^ 
And the same may be said, at this day, of States whose legisla- 
tures have not freely conceded rights to married women.^ 

§ 165. Conclusion from English and American Decisions. — 
The conclusion to be drawn from this class of cases is that, 
modern policy having once conferred upon the wife large 
powers both as to the acquisition and enjoyment of sepa- 
rate property, as well as the right to invest and reinvest the 
same, including their rights under marriage settlements, mar- 
ried women naturally sought business opportunities with their 
capital ; and thus the modern courts, confronted with the 
practical results, and aided by precedents from old local cus- 
toms or old legislation, were drawn into the practical conces- 
sion of trading privileges, and hence of trading liabilities, 
while professing to deny to the wife on general principles the 
right to engage in mercantile pursuits without more explicit 
statute provisions to that effect, and while requiring the assent 
of the husband to appear. 

When it is clearly for the wife's advantage to reap the 
benefits of her business, the disposition of the law to yield 
them must be strong; but where, as must often be the case, 
she speculates imprudently and becomes deeply involved, the 
court is perplexed, though doubtless anxious to relieve her. 
In some leading cases, upon this point, we find the married 
woman who has subjected her property to the demands of 
her husband's creditors permitted to stand in equity, where 
the business fails, as a sort of preferred creditor, for her 
manifest benefit.* The creditor's claim for supplies is of at 

1 McKinnon r, McDonald, 4 Jones Woodcock v. Reed, 5 Allen, 207, per 
Eq. 1. As to Alabama, see Newbrick curiam 

L\ Dugan, 61 Ala. 2ol. * Penn v. Whitehead, 17 Gratt. 503; 

2 Mat:kinley v. McGregor. 3 Whart. Richardson v. Merrill, 32 Vt. 27 ; Cowan 
378, and cases cited. r. Mann, 3 Lea, 229 See Bellows v. 

« Godfrey v. Brooks, 5 Harring. 396 ; Rosenthal, 31 Ind. 1 16. 

231 



§ 166 THE DOMESTIC RELATIONS. [PART n. 

least doubtful equity ; ^ such indebtedness must usually be 
pronounced void at law ; ^ while even equity Avill decline to 
enter a decree establisliing a charge on the wife's estate, un- 
less the husband, or some other trustee for the wife, is prop- 
erly before the court.^ And if equity, unaided by legishition, 
preserves the separate capital thus invested in trade, that 
the wife may enjoy its benefits, it is otherwise with profits 
which may have accrued beyond the interest of such 
capital.* 

§ 166. Enlargement of Wife's Power to Trade under Recent 
Statutes. — But the doctrine of a wife's separate trading is at 
tins day to be considered under the combined influence of 
modern equity decisions as to the wife's Jus disponendi. and 
the recent married women's acts. The English act of 1870 
declares that wages and earnings of a married woman shall be 
her separate property;-'' under construction of which act, the 
English chancery has lately sustained the right of a butcher's 
wife to carry on her husband's business upon her separate 
resources, he being incapacitated through delirium tremens, 
and, while at home, offering no obstruction to her course.® 
Again, both under the act of 1870 and independently of it, 
chancery protected the widow's interests as against the hus- 
band's administrator, after his death, in a valuable fruit-pre- 
serving business, which she had commenced while single ; 
then continued, after her marriage in 1874, to carry on in her 
maiden name, her husband consenting.^ 

The recent married women's acts in many of the United 
States have enlarged and more full}'' established the wife's 
power to trade on her own account ; and the profits of her 



' Johnson v. Gallaglier, 3 De G. F. 5 Act 33 & 34 Vict. c. 93 ; supra, 

& J. 494 , Copelanil v. Cunningham, 31 § 203. 

Ind. 116. But see Todd v. Lee, 16 Wis. e Lovell v. Newton, L. R. 4 C. P. D. 

480 ; Partridge v Stocker, 36 Vt. 108. 7. If his assent was not clearly shown 

2 Conklin c. Doul, 07 III. 355. to his wife's trade, tiiere would appear 

3 Ibid. to have been a pretty fair inference, 
* Jassoy V. Delius, 65 111. 4C!); Jen- from the facts, that he gave it. 

kins V. Flinn, 37 Ind. 349, and cases ^ Ashworih v. Outrani, L. R. 5 Ch. 

cited; Dumas v. Neal, 51 Ga. 563; 923. As to selling out the good-will, 

Clinton Man. Co. v. Hummell, 25 N. J. see Re Peacock's Trusts, L. R. 10 Ch. 

Eq. 45 i Schoul. Hus. & Wife, § 307. D. 490. 

232 



CHAP. XJI.] wife's separate TRADE. § 167 

business are thus secured to her sole and separate use.^ She 
is thus enabled to use her separate property ; and she may- 
even enter, in some States, into a general jjartnership for 
trade. In general, what the wife acquires under these stat- 
utes is declared to be exempt from liabilit}' for the husband's 
debts, and not subject to his control or interference. But 
the statutes of certain States require the married woman to 
first register her intention, thus affording a very reason- 
able safeguard against fraud and imposition upon the public 
and herself, besides requiring that the act be a deliberate 
one ; ^ and the husband will be held liable on her contract 
where the certificate is not duly filed.^ In Kentucky, special 
authority to trade must first have been conferred by the 
chancellor.'* Such requirements not being complied with, 
the creditors of the husband may come upon the assets of the 
business. 

The wife, under such statutes, is found engaged on her 
separate account, as milliner and dressmaker, ^ farmer,® 
boarding-house keeper,''' army sutler,^ operator of a mill,^ sa- 
loon-keeper,^o tavern-keeper,^^ or in whatever other business 
she may choose to carry on with her own capital. Even 
though the trade be unsuitable to her sex, fraud upon the 
husband's creditors will not be conclusively presumed. ^^ But 
it is held that the business under such statutes should be 
pursued as a continuing and substantial employment.^^ 

§ 167. Wife's Trading Liabilities under American Statutes. — 
Under these American statutes permissive of the wife's sepa- 
rate trade, it is a general rule that the wife's contracts re- 

J Such statutes are to be found in 5 Jassoy r. Delius, 65 111. 469; Tuttle 

New York, Maine, New Hampshire, v. Hoag, 46 Mo. 38. 

Massacliusetts, Connecticut, Kansas, 6 Kouskop v. Shontz, 51 Wis. 204; 

New Jersey, Iowa, California, Wis- Snow v. Shelrlon, 126 Mass. oo2. 

consin, Illinois, Arkansas, Mississippi, 1 Harnden v. Gould, 126 Jlass. 411; 

and otlier States. And see Mitchell v. Dawes v. Rodier, 125 Mass. 421. 

Sawyer, 21 Iowa, 582; Schoul. Hus. & » Swasey v. Antram,24 Ohio St. 87. 

Wife, § 309, and appendix. 9 Cooper v. Ham, 49 Ind. 303. 

'^ Mass. Stats. 1862, c. 198. See lo Nispel ;.'. Laparle, V4 111. 306. 

Schoul. Hus. & Wife, § 309. " Silveus v. Porter, 74 Penn. St. 

3 Feran v. Rudolphsen, 106 Mass. 448. 

i71. 12 Guttman i'. Scannell, 7 Cal. 455. 

* Uhrig V. Horstman, 8 Bush, 172. 13 Holmes v. Holmes, 40 Conn. 117. 

233 



§ 168 THE DOMESTIC KELATIONS. [PAET U. 

garding her separate trade or business are binding on her 
separate propert}^ and that the husband is not answerable 
for her solvency. With reference thereto she may make 
contracts, and sue and be sued, as if sole, except (as such 
statutes usually run) that where she is sued the remedy is 
to be enforced against her separate property only, and not 
against her person. She may make contracts of sale, and sue 
for goods sold and delivered to her customers.^ The power, 
to do business implies, too, the power to purchase goods, 
fixtures, and stock for it, and execute the needful instru- 
ments of purchase ; and hence the wife's contracts for such 
purchase on credit, her notes, bills, securities, or simple in- 
debtedness therefor, must be deemed obligatory and enforce- 
able by suit or other wise.^ And what she thus purchases, 
in the exercise of her trading discretion, is to be held and 
treated as her sole and separate property as against her hus- 
band and his creditors.^ Where, too, the married woman 
keeps a separate bank account, with reference to such busi- 
ness, the check which she draws against it and the fund 
itself are available to her business creditors.^ What she 
borrows by way of capital to commence the business, she is 
required to refund.^ 

§168. Wife's Trade; Husband's Participation. — It follows 
that under such legislation the husband is not liable on the 

1 Porter I'.Gamba, 43 Cal. 105; Net- 5 Freckitig r. Rolland, 53 N. Y. 442, 
terville v. Barber, 52 Miss. 168 ; Trieber As to purcbasing fixtures of real estate 
V. Stover, .30 Ark. 727. Tbe contracts for carrying on tlie business, see lb.; 
of married women, made by virtue of Dayton v. Walsh, 47 Wis. 113; Kous- 
Buch statute capacity, should not be kop v. Sliontz, 51 Wis. 204. 

viewed with hesitation or suspicion by On general principles, equity will 

the courts, but should be fully enforced, enjoin a married woman wlio sells out 

Netterville v. Barber, .52 Miss. 168. a business and its good-will, which she 

2 Xispel V. Laparle, 74 111. 306 ; has carried on for her separate account, 
Kouskop r. Shontz, 51 Wis. 204 ; Whea- from violating her own agreement with 
ton V. Phillips,! Beasl. 221; Reading the purchaser in restraint of future 
V. Mullen, 31 Cal. 104 ; Schoul. Hus. & competition or interference ; for in 
Wife, § .SIO. this respect a married woman should 

" Tallman v. Jones, 13 Kans. 438; not be regarded more favorably than 

Meyers v. Ruhte, 40 Wis. 655 ; Sammis others who dispose of their business to 

V. McLaughlin, 35 N. Y. 647 ; Silveus bona fide purchasers. Morgan v. Per- 

V. Porter, 74 Pe^n. St. 448; Dayton v. hamus, 36 Ohio St, 517. And see Re 

Walsli, 47 Wis. 113. Peacock's Trusts, L. R. 10 Ch. D. 

4 Nash V. Mitchell, 15 N. Y. 471. 490. 

2-34 



CHAP. XII.] wife's separate TRADE. § 168 

wife's contracts and liabilities incurred in the pursuit of her 
separate business, unless he participates in it.^ But his par- 
ticipation will not unfrequently be found in the modern cases; 
and hence arises legal uncertainty, and often a suspicion of 
fraudulent arrangements against one another's creditors. Does 
the proof, we must ask, under any such circumstances, show 
that the wife carried on no separate trade, but was her hus- 
band's agent? or that she did, and the husband was her 
agent ? or that they were in partnership together ? 

In Massachusetts, where the statutory doctrine of the wife's 
power to trade and acquire separate earnings has already re- 
ceived a considerable exposition in the courts, it is lield that 
where a married woman carries on the business of keeping 
boarders on her sole and separate account, and has purchased 
goods to be used in her business on her sole credit, she alone 
is liable, although her husband lived with her when the 
goods were purchased ; and her own acts and admissions in 
reference to the business are competent evidence against 
her.2 In Maine the husband cannot be sued for goods and 
chattels furnished his wife by third persons in the course of 
her business, even though such purchases were made by her 
with his knowledge and consent, and although she appropri- 
ated part of the proceeds to the support of her husband and 
family.^ But where the purchase and sales are made with 
the husband's knowledge and consent, and he participates in 
the profits of the business, knowing them to be such, and 
that she professed to act for him, it may be inferred in gen- 
eral that the purchases were made on the husband's credit.* 
Where the separate business, however, is carried on against 
the husband's consent and without his concurrence, he assur- 
edly is not liable.^ 

1 Parker v. Simonds, 1 Allen, 258; 8 Colby v. Lamson,39 Me. 119. 
Colby V. Lamson, .3!) Me. 119 ; Trieber * Oxnard v. Swanton, .39 Me. 12-5. 

V. Stover, 30 Ark. 727; Tuttle v. Hoag, & Tuttle v. Hong, 46 Mo. 38; Jen- 

46 Mo. .38. kins v. Flinn, .37 Ind. 349. See Smith 

2 Parker v. Simonds, 1 Allen, 258. v. Thompson, 36 Conn. 107, where the 
As to husband's liability on a lease, married woman had no power to trade 
though professing to underlet for a as a, feme sole. 

wife's business, see Knowles v. Hull, 
99 Mass. 562. 

235 



168 



THE DOMESTIC EELATIONS. 



[part n. 



In New York, as against her husband's creditors, the wife 
may make him managing agent, and let him conduct the 
business in her name, while she furnishes the capital from her 
own means and takes the profits to herself ; paying the man- 
aging agent what she thinks best, without subjecting the 
stock in trade to his debts.^ 

Where a married woman manages a separate trade or busi- 
ness by agents, the usual doctrine of agency must apply. 
The wife cannot avoid the usual liabilities on the plea that 
she made her husband her agent.^ The scope of the agency, 
too, must be considered as in other cases, and the agency, as 
actually conferred, is not the full test of responsibility for the 
agent's dealings with third parties ; for those clothed with ap- 
parent authority may bind their principals as though really 
authorized.^ In short, married women, as it is well observed, 
to the extent and in the matters of business in which they are 



1 Buckley v . Wells, 33 N. Y. 518. 
And see Sherman v. Elder, 24 N. Y. 381 ; 
Barton v. Beer, 35 Barb. 78 ; Abbey v. 
Deyo, 44 N. Y. 343 ; Hamilton v. Doug- 
las, 46 N. Y. 318 ; Sclioul. Has. & Wife, 
§ 314. All purchases or contracts of 
purchase for commencing or prosecut- 
ing the wife's separate business must 
have been made in good faith, and not 
as a means of fraudulently placing the 
husband's property beyond the reach 
of his creditors. Dayton v. Walsh, 47 
Wis. 113. But the employment of her 
husband in carrying on her separate 
business of farming does not make liira 
the wife's agent in the business, unless 
he contributed money or services as 
partner, lb. ; nor liis employment as 
salesman in the wife's store, Ploss v. 
Thomas, 6 Mo. App. 157; or as ope- 
rative or manager in his wife's mill. 
Cooper r. Ham, 49 Ind. 393. Proof 
that a husband signed notes for goods 
in a shop leased to him is not conclu- 
sive proof that the goods did not be- 
long to the wife's separate business: 
Mason u. Bowles, 117 Mass. 86; for a 
husband might sign as an agent and 
render her business liable. Freiberg 

236 



V. Branigan, 18 Hun, 344. But as to a 
judgment rendered against tlie agent 
himself, see Smiley v. Meyer, 55 Miss. 
555. 

But transactions which are tainted 
with fraud upon the rights of creditors 
and others must not be permitted to 
stand. Capital placed by a wife in her 
husband's hands, and by him so em- 
barked in business with her assent 
that credit is obtained upon it, is not, 
with the increase, the wife's separate 
property as against his creditors who 
have trusted accordingly, but rather 
his property. Patton v. Gates, 67 111. 
164; Kouskop v. Shontz, 51 Wis. 204. 
Or possibly like that of a firm in which 
both were partners. See § 169, post. 
A change in the mutual relations of 
the spouses regarding the business 
ought, on the usual principles of both 
agency and partnership, to be brought 
home to the knowledge of creditors 
with whom business relations continue 
uninterrupted. Bodine v. Killeen, 53 
N. Y. 93. 

2 Porter v. Gamba, 43 Cal. 105. 

3 Bodine v. Killeen, 53 N. Y. 93. 



CHAP. XII.] wife's separate TRADE. § 169 

by law permitted to engage, owe the same duty to those with 
whom they deal, and to the puVjlic, and may be bound in tlie 
same manner as if they were unmarried. To the extent of their 
enlarged capacity to transact business as conferred by stat- 
ute, they may be estopped by their acts and declarations, and 
made subject to all the presumptions which the law indulges 
against the other sex.^ And while, in general, the husband's 
gift may sustain the wife's claim of profits accruing from her 
separate trade ; yet the better opinion is, upon either equity 
or statute consideration, that a business carried on by a hus- 
band and wife in co-operation, his labor and skill uniting with 
hers, must be considered as his business so far as his creditors 
are concerned, and fail accordingly of protection for her espe- 
cial benefit; 2 though it might, perhaps, be well ruled in some 
States, that there is a partnership whose liabilities should be 
adjusted on partnership principles; highly objectionable as the 
jurist may well regard all such partnerships upon principle. 

§ 169. Wife as Copartner with Husband or Others. — As to all 
agencies and all partnerships, one rule may appl}^ in adjusting 
rights as between themselves, and another as to creditors 
whose confidence has been invited. And, on the whole, it 
would still appear to be the general rule, notwithstanding the 
late statutes, that a wife ma}^ not, as against the world, be- 
come her husband's partner, nor even join her labor and capi- 
tal to his in one and the same business enterprise.^ In Mas- 
sachusetts, while the statute permitted the wife to form a 
copartnership with third parties, this exception the court so 
strictly enforced, as to hold her transactions as a member of 
any firm in which her husband was interested as a partner 
utterly void, whether to her advantage or injury, inasmuch 
as a married woman cannot legally contract with her husband 
singly or jointly .* But under the New York statutes it is 

1 Bodine v. Killeen, 53 N. Y. 93 ; head, 17 Gratt. 503 ; Partridge v. 
Parshall y. Fisher, 43 Mich. 529 ; Leland Stocker, 36 Vt. 108; Schoul. Hus. & 
V. CoUver, 34 Mich. 418. Wife, §§ 303, 315. 

2 See National Bank v. Sprague, 5 3 Wilson v. Loomis, 55 III. 352; 
C. E. Green, 13; Oxnard v. Swanton, Montgomery j;. Sprankle, 31 Ind. 113; 
39 Me. 125 ; Cramer v. Keford, 2 C. E. Lord v. Parker, 3 Allen, 127. 

Green, 883. But see Penn v. White- * Lord v. Parker, 8 Allen, 127 ; Ed. 

237 



§ 169 THE DOMESTIC EELATIONS. [PART U. 

held that a husband and wife may not only enter into a valid 
partnership together for business, but carry it on under the 
name " A. & Co." (the " Co." representing the wife) with- 
out violating the law which forbids persons to transact busi- 
ness under fictitious names ; and that hence they can sue and 
recover in their joint names for goods sold and delivered by 
their firm.^ 

By the wife's business copartnership Avith third persons, 
and particularly with those of the opposite sex apart from 
her husband, she entangles her separate property disadvan- 
tageously, and incurs the risk of personal affiliations, besides, 
quite perilous to domestic concord and the mutual confidence 
which marriage demands. In Massachusetts the legislature 
permitted a married woman to form a copartnership in busi- 
ness with third parties, though not with her husband; but, 
• after some ten years' experience, repealed, in 1874, that per- 
mission.2 Most other States deny lier such a right as sepa- 
rate and exclusive of her husband's interest;-'^ though in 
some parts of the Union such copartnerships are sustained,* 
and she is not unfrequently found connected with business 
firms as a partner in place of her deceased husband ; " some- 
times, too, he is her successor, or else participates with her 
and third persons in the concern.^ 

Where a married woman enters legally into a copartner- 
ship, she becomes personally liable, to the extent of her 
separate property, for the partnership debts, like an}^ other 
partner." But our latest decisions tend to protect the wife 
against copartnership liabilities.^ 

wards y. Stevens, 3 Allen, 315; Plumer 381; Bradstreet v. Baer, 41 Md. 19; 

V. Lord, 7 Allen, 481. Howard v. Stephens, 52 Miss. 239. 

1 Zimmerman v. Erhard, 8 Daly, * See Newman v. Morris, 52 Miss. 
311. And so as to other States. See /?e 402. 

Kinkead, .3 Biss. 405 : Schoul. Hus. & ^ Preusser v. Henshaw, 49 Iowa, 41. 

Wife, § 316; Camden v. Mullen, 29 ^ Bitter r. Ratliman, 61 N. Y. 512; 

Cal. 564; Readinpf r. Mullen, 31 Cal. Swasey v. Antram, 24 Ohio St. 87. 

104 ; Atwood v. Meredith, 37 Miss. 635 ; ^ Preusser v. Henshaw, 49 Iowa, 41 ; 

Oglesby >•. Hall, .30 Ga. 386. Newman r. Morris, 52 Miss. 402. 

2 Todd . Clapp, 118 Mass. 495. 8 See Swasey ?'. Antram, 24 Ohio St. 
Such a law, not being interpreted re- 87; Parshall v. Fisher, 43 Mich. 529; 
troactively, was held con.stitutional. Jb. Bitter v. Rathman, 61 N. Y. 512; 

3 See Bradford v. Johnson, 44 Tex. Schoul. Hus. & Wife, § 318. See, as to 

238 



CHAP. XI[.] wife's separate TEADE. 



§170 



§ 170. Civil-Law Doctrine of Separate Trade. — By the 

Civil Code of France, the wife may carry on a trade inde- 
pendently of her husband.^ So the wife may be a separate 
trader under the custom of Paris.^ And a similar right is 
recognized by the laws of Spain and other European coun- 
tries.^ From the civil, rather than the common law, are de- 
rived those property rights of married women which are 
recognized in Louisiana, California, and others of the South- 
western States, originally colonized by the Spanish and 
French. Thus the Louisiana Code recognizes the capacity 
of the wife to carry on separate trade, or, as it is said, to 
constitute herself a public merchant, provided she act bona 
fide and have an active agency in the concern.* 



enforcing trading liabilities against a 
wife, Schoul. Hus. & Wife, §§ 319, 320. 

1 Code Civil, art. 220; 1 Burge Col. 
& For. Laws, 219. 

2 1 Burge Col. & For. Laws, 218. 

3 76. 220, 420, 698. 

* La. Code, art. 128 ; Christensen v. 
Stumpf. 16 La. Ann. 50. And see 
Camden v. Mullen, 29 Cal. 564; Head- 
ing u. Mullen, 31 Cal. 101 ; Community 
Doctrine, supi-a, § 7. 

How great the cliange which modern 
equity and legislation have wrought, 
and modern legislation especially, in 
marital rights and duties as defined by 
the common law, will further appear 
from the miscellaneous changes noticed 
in Schoul. Hus. & Wife, §§ .321-83.3, 
which see passim, also Appendix, with 
analysis of latest married women's acts. 
These changes, which concern con- 
tracts, torts, propert}- of the wife, and 
suits by or against her, may be specified 
as chiefly relating: (1) to tlie wife's an- 
tenuptial debts ; (2) to tlie wife's gen- 
eral disabilitj' to contract; (3) to the 
necessaries of wife and family; (4) to 
torts committed by the wife ; (5) to torts 
committed upon the wife ; (6) to torts 
or crimes committed by one spouse and 
afTecting the other ; (7) to the wife's 
property; (8) to actions by a married 
woman, her arbitration, &c. 

To attempt a minute analysis of the 



married women's acts would require 
more space than our plan will permit. 
Nor would it profit the reader. The id- 
dependent legislation of some thirty 
distinct communities, without uniform- 
ity of plan or principle, involving, as it 
does, the most interesting and yet the 
most perplexing of social problems, 
must necessarily produce results which 
cannot be reconciled. It is too early 
j'et to generalize from the decisions. 
Even though the hand of innovation 
should be staj-ed for a while, and pub- 
lic attention centre in the work of 
blending these results into harmony, it 
would be many years before our courts, 
applying local codes and the traditions 
of tlie English common law and equity 
jurisprudence to the discordant mass of 
material before them, could hope to set 
up a consistent and thorough American 
system. As one of our own jurists 
well remarks, wherever tlie line may 
be drawn, it will be long before the 
public will understand and recognize 
the point where the power of a married 
woman to bind herself by her bargains 
ceases, and frauds upon tlie thoughtless 
and inconsiderate must often occur. 
Per Bell, C. J., in Ames v. Foster, 42 
N. H. 381. The ultimate scope of all 
this legislation must, however, be 
either, regarding the wife as peculiarly 
exposed to coercion and subtle influ- 

239 



172 THE DOMESTIC RELATIONS. [PART H. 



CHAPTER XIII. 

ANTENUPTIAL SETTLEMENTS. 

§ 171. Nature of Marriage Settlements. — Settlements are a 
useful contrivance for preserving estates intact in a family. 
As between husband and wife the word " settlement " is 
applied to their mutual contracts in reference to the property 
of one another, by means of which, under the protection 
of courts of equity (which favor, as did also the civil 
law, arrangements in recognition of property in the wife as 
well as the husband), they change and control the general 
rules of the marriage state. They cannot vary the terms 
of the conjugal relation itself; they cannot add to or take 
from the personal rights and duties of husband and wife ; 
but they may essentially alter the interest which each takes 
in the property of the other, if they choose to enter into 
special stipulations for that purpose. These special stipula- 
tions may be either antenuptial or postnuptial ; while, as we 
shall soon perceive, the two classes are more alike in name 
than substance, and the term " marriage settlements " is fre- 
quently applied to antenuptial settlements only. 

§ 172. Distinguished from Promises to Marry under Statute 
of Frauds. — A distinction meets us at the outset between 
promises to marry and promises in consideration of marriage. 
The Statute of Frauds, § 4, requires that promises and agree- 
ments in consideration of marriage shall be " in writing, and 
signed by the party to be charged therewith, or some other 

ence, if not mastery by main force ist in a state of nature, but her disabili- 

from the natural necessities of her po- ties have been rather created by muni- 

sition in tiie conjugal partnersliip, if not cipal law, and enforced by tyrannical 

the weakness of her sex, to afford that men, to treat her as sui juris, and make 

legal protection and shelter which she her bear the full responsibility of her 

has always claimed, and which our law own legal engagements, be they pru- 

in a strait could never deny her ; or dent or foolish, like one discovert. 
else, as though no such necessities ex- 

240 



CHAP. XIII.] ANTENUPTIAL SETTLEMENTS. § 173 

person thereunto by him lawfully authorized." Yet a prom- 
ise to marry is binding, although verbal.^ It would strike 
any one (except perhaps a lawyer) that a promise by a woman 
to marry a man in consideration of his promising to marry 
her was an agreement made in consideration of marriage, but 
it is not.'^ Perhaps it is public policy which sustains the latter 
rather than the former contract without requiring a writing. 
Perhaps, too, this carries weight : that a promise to marry is 
merely a promise to enter into a certain relation, and there- 
fore clearly interpreted by any court without, the aid of writ- 
ten evidence, provided the promise be once proved ; while 
the Statute of Frauds is found most convenient for clearly 
fixing mutual stipulations which might be varied in a thou- 
sand ways, and affect the property rights of the contracting 
parties accordingly. At all events, a promise to marry, 
whether verbal or written, affords a singular remed}^ for breach, 
one quite different from the remedies attending marriage 
settlements : namely, no right of specific performance, but 
always dan)ages to the injured party. 

§ 173. Marriage the Consideration "which supports Antenup- 
tial Settlements. — In antenuptial marriage settlements, or 
what are called " marriage settlements," the marriage affords 
a sufficient consideration. Hence a man cannot set aside an 
agreement in contemplation of marriage, on the plea that his 
wife's fortune fell short of his expectations ; for, as Lord 
Hardwicke observed, it would be extremely mischievous to 
set aside marriage settlements upon such grounds.^ It is the 
consideration of marriage, not the consideration of a corre- 
sponding fortune, which runs through the whole settlement 
or agreement, and supports every part of it, thus making 
marriage not only a high, but the highest consideration in 
fact known to the law.^ 

In this country the validity of marriage settlements is gen- 
erally recognized ; and it is well understood that almost any 

1 Macq. Hus. & Wife, 220 ; Cook v. 3 Ex parte Marsh, 1 Atk. 159. 
Baker, 1 Stra. 34; Harrison v. Cage, 1 * Ford t'. Stuart, 15 Beav. 499; Nairn 
Ld. Raym. 386 ; Schoul. Hus. & Wife, v. Prouse, 6 Ves. 762 ; Peachey Mar. 
§ 44. Settl. 56. 

2 See Smitli on Contracts, 57. 

16 241 



§ 174 THE DOMESTIC RELATIONS. [PART II. 

bona fide and reasonable agreement, made before marriage, to 
secure the wife either in the enjoyment of her own property 
or a portion of that of her husband, whether during coverture 
or after his death, will be carried into execution in chancery.^ 
" These marriage settlements," observes Chancellor Kent, 
" are benignly intended to secure to the wife a certain sup- 
port in every event, and to guard her against being over- 
whelmed by the misfortunes or unhindness or vices of her 
husband. They usually proceed from the prudence and fore- 
sight of friends, or the warm and anxious affection of parents ; 
and, if fairly made, they ought to be supported according to 
the true intent and meaning of the instrument by which they 
are created." ^ And marriage is of itself pronounced in the 
supreme court of this land to be not only a valuable consider- 
ation to support a marriage settlement, "but a consideration 
of the highest value." ^ 

§ 174. How far this Support extends. — But this rule must 
be taken with some caution. The marriage consideration 
supports every provision with regard to the husband, the 
wife, and the issue. As for marriage itself, the marriage of 
persons formerly in loose cohabitation furnishes good con- 
sideration ;* and even perhaps a void or illegal marriage, pro- 
vided that marriage was contracted with honest conjugal 
intent, and particularly where the question affects only their 
respective interests. ° The consideration is held also to extend 
to stepchildren by a former marriage.^ It does not, however, 



1 Stilley V. Folger, 14 Ohio, 610 ; 2 2 Kent Com. 165. 

2 Kent Com. 163 ; 2 U. S. Eq. Dig. 3 Pgr Story, J., Magniac v. Thomp- 

Hus. & Wife, 22-30; English v. Foxall, son, 7 Pet. 348. And see Armfield v. 

2 Pet. 595 ; Hunter v. Bryant, 2 Wheat. Armfield, 1 Freem. Cli. 311. 

32 ; Tarbell v. Tarbell, 10 Allen, 278 ; * Herring v. Wickham, 29 Gratt. 

Skillman v. Skillman, 2 Beasl. 403; 628. 

Cartledge I'. Ciitliff, 29 Ga. 758 ; Albert ^ Even in England, upon lapse of 

V. Winn, 5 Md. 66 ; Snyder v. Webb, time, a settlement deed was allowed to 

3 Cal. 83; Smith v. Chappell, 31 Conn, stand where a widower had married his 
589. deceased wife's sister. Ayers v. Jen- 

An estate may be limited to an un- kins, L. R. 16 Eq. 275. 

married woman's separate use, even 6 Michael v. Morey, 26 Md. 239; 

where no particular marriage is con- Gale v. Gale, 6 Ch. D. 144 ; Vason v. 

templated. Schoul. Hus. & Wife, § Bell, 53 Ga. 516. But see Price r. Jen- 

198 ; Hayraond v. Jones, 33 Gratt. 317. kins, 4 Ch. D. 483. Cf. Ardis v. Printup, 

242 



CHAP. Xin.] ANTENUPTIAL SETTLEMENTS. 



§m 



always extend to collaterals,^ though Sir Matthew Hale and 
others held formerly that it would, maintaining that the in- 
fluence of the marriage consideration extended to purchasers 
generally .2 Nor are covenants in favor of strangers sup- 
ported by the marriage consideration unless specially pro- 
vided for.^ 

The consideration of marriage will support a settlement 
against creditors, even prior ones ; this, too, it would appear, 
though the. parties both knew of the husband's indebtedness, 
so long as the provisions of the settlement are not grossly out 
of proportion to his station and circumstances ; * and so, too, 
where the party to be benefited thereby was implicated in 
no fraud upon the other's creditors, even though that provi- 
sion be unreasonably large.^ But if it appear that the cele- 
bration of marriage is part of a scheme between the marrying 
parties to defraud and delay creditors, such settlement will 
not be allowed to protect the property against just claims of 
the latter.^ Where fraud has been committed b}^ husband 



39 Ga. 648, with Wollaston v. Tribe, 
L. R. 9 Eq. 44, as to children of a fu- 
ture marriage. 

1 Peachey Mar. Settl. 58, 60, and 
cases cited ; Davenport v. Bisliop, 1 
Phil. 701 ; Barham v. Earl of Claren- 
don, 10 Hare, 13.3 ; Ford v. Stuart, 15 
Beav. 505 ; Cotterell v. Homer, 13 Sim. 
506 ; Wollaston v. Tribe, L. R. 9 Eq. 
44. 

2 Jenkins v. Kerais, 1 Ch. Cas. 103 ; 
1 Lev. 152. 

3 Sutton V. Chetwynd, 3 Mer. 249, 
per Sir Wm. Grant ; Sugdcn Law Prop. 
153; Peachey Mar. Settl. 61. 

* Campion v. Cotton, 17 Ves. 272 ; 
Ex parte McBurnie, 1 De G. M. & G. 
446; Ramsay v. Richardson, Riley Ch. 
271 ; Armfield v. Armfield, 1 Freem. 
Cli. 311 ; Jones's Appeal, 62 Penn. St. 
824 ; Brunnel v. Witherow, 29 Ind. 123 ; 
Barrow v. Barrow, 2 Dick. 504 ; Coch- 
ran V. McBeath, 1 Del. Ch. 187 ; Credle 
V. Carrawan, 44 N. C. 422. 

^ Collaterals are favorably regarded 
in Neves v. Scott, 9 How. (U. S.) 196 ; 
ih. 13 How. 268 i Schoul. Hus. & Wife, 



§ 349, and cases cited. Where no 
fraud upon the iiusband's creditors can 
be cliarged on the woman, she may 
hold as a purchaser for value against 
tlie husband's prior creditors, even 
tliough the settlement upon lier em- 
braced tlie Iiusband's whole estate, and 
the marrying parties iiad been cohabit- 
ing wliile single, and had illegitimate 
children. Herring v. Wickliara, 29 
Gratt. 628. Tiiis is an extreme case, 
and perhaps some other States would 
not extend the rule so far. But it finds 
strong support from the Supreme Court 
of the United States in a case decided 
in 1881, which upheld tlie settlement 
of a large amount of real estate, in con- 
sideration of marriage, by an insolvent 
debtor upon the woman wiio accepted 
him, notwithstanding the latter knew 
he was financially embarrassed. Prewit 
V. Wilson, 103 U. S. Supr. 22. See 
comments, Schoul. Hus. & Wife, § 349. 
And see Kevan v. Crawford, 6 Ch. D. 
29. 

s Columbine v. Penhall, 1 Sm. & 
Gif. 228; Goldsmith v. Russell, 5 De G. 

243 



§ 175 THE DOMESTIC RELATIONS. [PART H. 

and wife in reference to property embraced in the terms of a 
settlement, the rights of a creditor witli insufficient notice 
are sometimes upheld as against themselves; and a wife's 
settlement of her own property has been so far set aside as 
to secure payment of her antenuptial debt to the creditor.^ 

§ 173. Settlement Good in Pursuance of Written Agreement. 
— If an agreement be made in writing before marriage, for 
the settlement of an estate, the settlement, although made 
after marriage, will be deemed valuable.^ This is a well- 
settled rule, and should be constantly borne in mind. 

There are dicta to the effect that a settlement after mar- 
riage, reciting a parol agreement before marriage, is not 
fraudulent against creditors, provided the agreement had 
actual existence ; but this point has never been distinctly 
decided in England ; and some late authorities appear to 
doubt its correctness.^ The payment of money would, how- 
ever, make a good consideration for such a settlement as 
against subsequent creditors.^ The language of the Statute 
of Frauds has a material bearing upon all such cases. Yet 
very informal agreements are often sustained, rather on lib- 
eral than technical construction, the court taking into con- 
sideration the fact that marriage had taken place, or other 
acts been performed, on the strength of the promise.^ The 
disposition of equity courts in the United States is favorable 
to settlements after marriage in pursuance of some informal 
prior agreement, particularly as relates to personal property 
and as between the spouses themselves. Other considera- 

M. & G. 000 ; Peachey Mar. Settl. 63 ; & Purch. 13th ed. 590 ; Macq. Hus. & 

Simpson v. Graves, Riley Ch. 232. Wife, 257. 

1 Sharpe v. Foy, L. R. 4 Ch. 35 ; 3 gee Peachey Mar. Settl. 63 ; Las- 
Smith V. Chirrell, L. R. 4 Eq. 390 ; sence v. Tierney, 1 Mac. & Gor. 571 
Clmbb i: Stretch, L. R. 9 Eq. 555 ; Warden v. Jones, 5 W. R. 447. And 
Obermayer v. Greenleaf, 42 Mo. 304 ; see Babcock v. Smith, 22 Pick. Gl 
Brame v. McGee, 46 Ala. 170. Simpson v. Graves, Riley Ch. 232. 

- Reade v. Livingston, 3 Johns. Ch. •* Stillman v. Ashdown, 2 Atk. 478 

481 ; Finch v. Finch, 10 Ohio St. 501 ; Brown r. Jones, 1 Atk. 189. And see 

Izard V. Izard, 1 Bailey Ch. 228 ; David- Butterfield v. Heath, 15 Beav. 414. 
son V. Graves, Riley Ch. 219 ; Satter- ^ See Livingston v. Livingston, 2 

thwaite v. Emiey, 3 Green Ch. 489; Johns. Ch.481 ; Resor v. Resor, 9 Ind. 

Rogers i'. Brightman, 10 Wis. 55; 347; Brooks r. Dent, 1 Md. Ch. 523; 

Peachey Mar. Settl. 63 ; Sugd. Vend. West v. Howard, 20 Conn. 581. 

244 



CHAP. XIII.] ANTENUPTIAL SETTLEMENTS. § 177 

tions, sucli as forbearance to sue, or the fulfilment, in return, 
of terms prejudicial, might intervene.^ A mere oral agree- 
ment between the intended husband and wife, followed by 
marriage and a continued recognition by acts, especially in 
connection with such other consideration, is held sufficient 
for the wife's favor in some late American cases, as between 
the parties and those claiming under them.^ 

§ 176. Form of Antenuptial Settlements. — With respect tO 
the form of marriage settlements it maybe generally observed 
that equity pays no regard to the externals, but considers 
only the substantial intention of the parties ; and hence arti- 
cles or an agreement will be binding between husband and 
wife without the intervention of trustees ; for here the hus- 
band himself may be bound to act as trustee.^ And lience 
the signature of the wife to an instrument or an indenture 
deed is by no means indispensable in order that her rights 
upon marriage consideration be sustained.* 

§ 177. Marriage Articles. — In this connection the use of 
the term " marriage articles" is properly to be noticed. 

1 Riley v. Riley, 25 Conn. 154 ; Brad- 480. Even in law a bond, with conditions 
ley V. Saddler, 54 Ga. 681. See, as to properly expressed, may be enforced 
the like English practice, Peachey Mar. against the husband to tiie extent of 
Settl. 74, 87; Macq. Hus. & Wife, 234 ; tiie penalty therein named ; yet equity, 
Hamniersley v. De Biel, 12 CI. & Fin. regarding the contract as one for spe- 
45; Lassence r. Tierney, 1 Mac. & Cor. cific performance, will not confine the 
671. The numerous dicta in all sucii remedy of the injured party to the 
cases serve rather to obscure than illus- penal sum named in tlie bond ; but, 
trate the principle. enforcing the real obligations of the 

2 See Schoul. Hus. & Wife, § 350, bond, will give, if need be, thirty times 
and cases cited ; post, § 179. that sum to her who married on the 

3 Peachey Mar. Settl. 65; Macq. strength of it. Such is the advantage 
Hus. & Wife, 242 ; Logan v. Goodall, of equity over the law. See Prebble 
42 Ga. 95. But see Dillaye v. Green- v. Bogliurst, 1 Swan. 309, before Lord 
ough, 45 N. y. 438. Eldon, cited in Macq. Hus. & Wife, 

A strong instance of the liberality of 243 eZ seq. ; Cannel v. Buckle, 2 P. Wms. 
the equity courts in this respect was 242; Rippon i-. Dawding, Ambl. 565; 
afforded in an early decision by Lord Peachey Mar. Settl. 65. Bonds have 
Keeper Wright. The intended lius- been frequently enforced in this coun- 
band gave the intended wife a bond try as constituting a marriage settle- 
conditioned to leave her £1,000 if she ment. Aucker f. Levy, 3 Strobh. Eq. 
.should survive him. They married, 197; Hunter r. Bryant, 2 Wheat. 32; 
and of course the bond became void at Freeman v. Hill, 1 Dev. & Bat. Eq. 
law. But It was held that in equity 889 ; Baldwin v. Carter, 17 Conn. 201. 
this should subsist as an antenuptial * Cochran v. McBeath, 1 Del. Oh. 
agreement. Acton v. Pierce, 2 Vern. 187. 

245 



§ 177 THE DOMESTIC RELATIONS. [PART II. 

" When promises and agreements in consideration of mar- 
riage," says Mr. Macqueen, "■ are meant to become the 
ground-work of settlements, they are called marriage articles. 
They are often drawn up hastily, and signed on the eve of 
the nuptial ceremony from want of time to prepare a final 
deed ; which, however, when ultimatel}^ executed, if it be in 
strict conformity with the articles, will supersede them." ^ 
The American rule is favorable to marriage articles, although 
unskilfully drawn, so long as they are hotia fide articles, and 
the party marrying upon their faith had good reason to rely 
upon them as such.^ Any settlement made after marriage, 
in pursuance of marriage articles, or what may be construed 
as such, receives the full support of the marriage consider- 
ation, and must prevail accordingly against creditors, pur- 
chasers, and each of the married parties. 

Letters or a correspondence before marriage may establish 
an antenuptial settlement where they sufficiently furnish the 
terms of tiie agreement. And so, too, may they constitute 
marriage articles and support a settlement made in pursuance 
of their terms.^ But the authenticity of such correspondence 
should be well established, so easy is such proof manufactured 
to suit emergencies ; and certainly where the contest is be- 
tween the married pair and a husband's creditors, the true 
date of the letters should be proved, or else that they 
were duly received before the marriage.* Nor will perform- 
ance be decreed, unless it can be gathered, from a fair inter- 
pretation of the letters, that they imported a concluded 
agreement, and induced the marriage; nor if it be doubtful 
whether what passed was not mere negotiation, or a gratui- 
tous offer by the one, which the other never accepted nor 
meant to rely upon.^ 

1 Macq. Hus. & Wife, 246. 611 ; Hammersley v. De Bid, 12 CI. & 

2 Neves v. Scott, 9 How. infj ; Hooks Fin. 45 ; Moorliouse v. Colvin, 15 Beav. 
V. Lee, 8 Ired. Eq. 157; Rivers v. 349 ; Kinnard y. Daniel, 13 B. iMonr. 49(5. 
Tliayer, 7 Rich. Eq. 136; Kinnard v. * Kinnard v. Daniel, 13 B. Monr. 
Daniel, 13 B. Monr. 490 ; Montgomery 496 ; Montgomery v. Henderson, 3 Jones 
r. Henderson, 3 Jones Eq. 113: Smith Eq. 113. 

V. Moore, 3 Green Ch. 485; Potts v. '•" Fovvle v. Freeman, 9 Vcs. 315; 
Cogdell, 1 Desaiis. 456. Card r. Jaffray, 2 Sch. & Lef. 384; 

3 Logan V. 'VVienholt, 1 01. & Fin. Ciiarabers «. Sallie, 29 Ark. 407. 

246 



CHAP. XIII.] ANTENUPTIAL SETTLEMENTS. § 179 

§ 178. Marriage Settlements by Third Persons. — Promises 
made in consideration of the marriage by a third party, such 
as the wife's father, may afterwards be enforced against him, 
as (in such an instance) hy the husband. But it must appear 
that the hitter knew of the promise, and that it entered as an 
ingredient into the marriage ; and the husband cannot, upon 
finding, after marriage, that his wife, while single, had 
received a letter from her father, promising a certain allow- 
ance, hold the latter to specific performance.^ The promise 
of a third party may be for the wife's benefit ; or it may be 
for the mutual benefit of the married parties, and enforceable 
accordingly.''^ 

Courts of equity have frequently refused, however, to en- 
force marriage agreements on the ground of their being in- 
consistent, uncertain, and unintelligible ; ^ and particularly is 
this found true of loose expressions contained in letters writ- 
ten by relatives of the married parties, upon which the attempt 
is made to render them chargeable when the marriage was not 
thereby induced.^ 

§ 179. Effect of Statute of Frauds. — Under the English 
Statute of Frauds, and similar enactments in various Amer- 
ican States, promises "in consideration of marriage" are re- 
quired to be in writing ; and hence an oral promise to settle 
property upon an intended spouse is void.^ Cases have 
arisen, however, under the Statute of Frauds, where the 
marriage agreement had been reduced to writing, but not 
signed, and yet letters passed afterwards between the parties, 

1 Ayliffe v. Tracy, 2 P. Wms. 66 ; Mar. Settl. 68 ; Quinlan v. Quinlan, 
Madox V. Novvlan, Beatty, 632. Hayes & Jones, Jr. Kep. 785 ; Maunsell 

2 Thus, in a recent English case the v. White, 1 Jo. & Lat. 539. 

estate of a fatiier was held bound by * Hincks v. Allen, 28 W. R. 533. 
his written statements of intention to As to carrying out the wishes of a 
settle the whole of his property upon liis third party respecting property de- 
daughter, on the strength of which she vised so as to settle it upon marrying, 
married ; and this, notwithstanding the see Teasdale v. Brailhwaite, 5 Ch. D. 
father, being at the time a widower, 630. 

remarried afterwards and left a widow. 5 Tawney v. Crowther, 3 Bro. C. C. 

Coverdaie v. Eastwood, L. R. 15 Eq. 263; Coles v. Trecothick, 9 Ves. 250; 

121 ; a. harsh case, truly. Lloyd v. Fulton, 91 U. S. Supr. 479 ; 

3 Franks v. Martin, 1 Eden, 309; Flenner y. Flenner, 29 Ind. 569 ; Henry- 
Kay V. Crook, 3 Jur. n. s. 107; Peachey v. Henry, 27 Ohio St. 121. 

247 



§ 181 THE DOMESTIC RELATIONS. [PART II. 

referring to the agreement, which sufBcecl to establish it. In 
general, a letter which contains the terms of an agreement, 
or refers to another paper which specifies the terms, is suffi- 
cient to take the contract out of the Statute of Frauds.^ 

§ 180. General Requirements; Trustee, &c. — Antenuptial 
agreements are so liable to misapprehension and fraud, that 
they will not be enforced in equity unless the court is satis- 
fied that they were made, and that the marriage consideration 
really entered into the contract.^ If in the form of a writing, 
due delivery should appear ; though if the written contract 
be produced from the proper custody, and its execution 
proved, proper delivery is readily presumed.^ Where duly 
made and delivered, such settlements may be cancelled ; but 
whether a mutilated instrument was intentionally cancelled 
or not is matter for proof.* 

Under modern rules of separate use, a valid marriage set- 
tlement may be made without the designation of a trustee, 
though in such contracts, when drawn up with due formality, 
trustees are commonly interposed outside the marriage rela- 
tion, however, who hold the legal title ; and such is unques- 
tionably the more prudent arrangement.^ 

§ 181. Secret Settlement before Marriage; Fraud of a Spouse. 
— A secret settlement or voluntary transfer in whole or in 
part of her property made by a woman upon third persons, 
while engaged, and contemplating marriage, is liable to be 
set aside in equity as a fraud upon the marital rights of her 
intended husband, at the husband's instance, when he learns 
of it. Prima facie, her transactions as Sifeme sole with refer- 



1 Hammersley v. De Biel, 12 CI. & husband's possession after his death, 
Fin. 45 ; Moorhouse v. Colvin, 15 Beav. execution proved, and also liis recoir. 
349; Peacliey Mar. Settl. 67; 3 Bro. nition during his lifetime, due delivery 
C. C. 263. was presumed. 

2 Coles V. Trccothick, 9 Ves. 2-50 ; « Barclay v. Waring, 58 Ga 8(1, 
Franks v. Martin, 1 Eden, 309 ; Kay v. See summary of doctrine in Bold i-. 
Crook, .3 Jur. N. s. 107; Montgomery Hutchinson, 20 Beav. 259; Sclioul. 
V. Henderson, 3 Jones Eq. 113 ; Peacliey Hus. & Wife, § 355. 

Mar. Settl. 68 ; Kinnard v. Daniel, 13 ^ Cochran v. McBcath, 1 Del. Ch. 

B. Monr. 496. 187 ; Peachey Mar. Settl. 200 ; Hay- 

3 In Smith v. Moore, 3 Green Ch. mond v. Lee, 33 Gratt. 317, Schoul. 
485, the document being found in the Hus. & Wife, § 35G. 

218 



CHAP. XIII.] ANTENUPTIAL SETTLEMENTS. § 181 

ence to her own property are valid both at law and in eqnity ; 
it is only because of the fraud that her husband can after- 
wards obtain relief against them ; yet the English courts have 
gone far in discountenancing all conveyances made by the 
intended wife in derogation of the property rights of her in- 
tended husband, where made without notice to him.^ The 
secrecy of the proceeding is a material element, from which 
fraud will be inferred.^ 

The same general doctrine has been repeatedly declared in 
the courts of this country ; and secret and voluntary convey- 
ances, made by a woman contemplating marriage, may be set 
aside on the husband's subsequent application as a fraud upon 
his marital rights,^ under the same qualification that the in- 
tended spouse was thereby defrauded.'* 

If the wife's transfer or conveyance to another, under such 
circumstances, be without valuable consideration to herself, 
there is the less reason why equity should uphold it ; ^ and if 
it it be in plain derogation of her own interests, as, for in- 
stance, to some insolvent relative to hold in trust for her, or 
so as to suggest that fraud or coercion was practised upon 
her, it is for the common nuptial interests that courts of 
chancery repudiate the arrangement altogether.^ By virtue 



1 Peachej' Mar. Settl. 142, and cases preclude all subsequent allegations of 
cited; 11 C. B. 1035; St. George v. fraud on tlie marital right. 2 Bro. C. 
Wake, 1 Myl. & K. 618 ; Macq. Hus. & C 515. It is the usual practice with 
Wife, 36 ; England v. Downes, 2 Beav. English conveyancers at the present 
522 ; 2 Ch. Rep. 81 ; 1 Eq. Cas. Ab. day to make the intended husl)and a 
59, pi. 1. party to all instruments executed by 

2 England v. Downes, 2 Beav. 522 ; the intended wife in contemplation of 
Macq. Hus. & Wife, 36. The husband or during a treaty of marriage. Peachey 
must have been kept in ignorance of Mar. Settl. 155. 

the transaction up to the moment of ^ 2 Kent Com. 174, 175, and notes, 

marriage. For, as Lord Chancellor 12th ed. ; Spencer v. Spencer, 3 Jones 

Brougham once observed, if a man, Eq. 404; Tucker v. Andrews, 13 Me. 

knowing what has been done, still 124, 128; Williams i'. Carle, 2 Stockt. 

thinks fit to marry the lady, he cannot 543; Freeman v. Hartman, 45 111. 57 ; 

be permitted to allege afterwards that Baker v. Jordan, 73 N. C. 145; Hall v. 

he has been deceived. St. George v. Carmichael, 8 Baxt. 211. 
Wake, 1 Myl. & K. 610. Actual con- < gchoul. Hus. & Wife, § 357; 

currence on the part of the intended Gregory v. Winston, 23 Graft. 102. 
husband in his wife's settlement will be ^ Baker v. Jordan, 73 N. C. 145; 

even more conclusive against him ; and, Fletcher v. Ashley, 6 Gratt. 332. 
even though he were a minor, will ^ Hall v. Carmichael, 8 Baxt. 211. 

249 



§ 182 THE DOMESTIC RELATIONS. [PAKT II. 

of late statutory changes, tending to relieve a husband of his 
wife's antenuptial debts, or of other common-law burdens, on 
her account, the husband maj^ sometimes stand in equity on 
the stronger footing of a defrauded creditor, where he seeks 
to liave the secret couvej^ance of his affianced set aside in 
his favor.i 

A corresponding rule as to fraud would, doubtless, apply 
to a husband, who, before marriage, liad made a secret trans- 
fer or conveyance of his own property to his wife's injury ; 
not, however, without regard to the difference which subsists 
at law between their marital rights in each other's property .^ 
Indeed, it is someiimes said that any designed and material 
concealment ought to avoid an antenuptial contract at the 
will of the party who has been thereby injured.^ 

§ 182. Reforming Marriage Settlements ; Portions, &c. — Mar- 
riage articles, to make a settlement of real property, should 
be drawn up only in extreme cases; though, in the case of 
personalty, more latitude may be allowed ; and when drawn 
up they should leave as little to construction as possible. 
Yet marriage articles are frequently pi-epared in great haste, 
and many questions must necessarily arise as to the intention 
of the parties ; these the courts of equity endeavor to meet 
by adopting the intention of the parties as their true guide, 
and taking it for granted that the articles are merel}' minutes 
which the settlement may explain more at large, but which 
are not to be literally followed.* The general rule as to 
reforming settlements framed upon antenuptial articles is 
thus laid down by Lord Chancellor Talbot:^ "Where ar- 
ticles are entered into before marriage, and settlement made 



1 Westerman r. Westerman,25 0hio ■* Peacliey Mar. Settl. 89-97 ; Macq. 
St. 500. But see Powell v. Manson, 22 Hus. & Wife, 257 ; Trevor v. Trevor, 
Gratt. 177. 1 P. Wins. 631 ; Blamlford v. Marlbo- 

2 See Leach w. Duvall, 8 Rusli, 201 ; rough, 2 Atk. 545; Roclifort v. Fitz- 
Gainor v. Gainor, 26 Iowa, 3:57. Lapse maurice, Dru. & War. 18. But see 
of time and other circumstances may Breadalbane v. Chandos, 2 Myl. & Cr. 
remove any presumption of fraud or 711. 

unfairness on his part. Butler i;. But- ^ LeRg «'• Gold wire, Forrester, 20; 

ler, 21 Kan. 521. Macq. Hus. & Wife, 259. 

3 Kline v. Kline, 57 Penn. St. 120.; 
Kline's Estate, 64 Penn. St. 122. 

250 



CHAP. XIII.] ANTENUPTIAL SETTLEMENTS. 



183 



after marriage, differing from the articles, this court will set 
up the articles against the settlement." That is to say, the 
court will order the settlement to be reformed,^ 

§ 183. Equity corrects Mistakes, or sets aside; Fraud and Im- 
providence. — Mistakes in marriage settlements, either through 
error or fraud, will in general be corrected in equity ; the 
principle being that the parties are to be placed in the same 
situation in which they would have stood if the error to be 
corrected, or the fraud, had not been committed.^ Owing, 
moreover, to the confidential relation which subsists between 
the parties, an antenuptial contract which appears to have 
been unfairly procured will be set aside.^ Equity, moreover, 
sometimes refuses to enforce an antenuptial settlement, as 
between husband and wife, not only because of its fraudulent 
character as regards the one or the other party, but on the 
ground that it is improvident ; * yet relief of this sort is 
rarely afforded, and especially so where a third party, or the 
husband, not the wife, seeks it.^ And Avhile the intended 
wife may, perhaps, in an extreme case, be relieved from an 
antenuptial contract which bears very harshly upon her prop- 



1 Legg V. Goldwire, Forrester, 20. 
See Peachey Mar. Settl. 135 ; Bold v. 
Hutchinson, 2 Jur. n. s. 97 ; 5 De G 
M. & G. 567. As to portions for cliil- 
dren, &c., see Schoul. Hus. & Wife, 
§ 359 ; 1 Atk. 522 ; W^allace v. W.allace, 
82 111. 430 ; Russell v. St. Aubyn, L. K. 
2 Ch. D. 398. 

And curiously enough in an English 
case under tiiis head, tiiough the settle- 
ment followed the precise words of the 
marriage articles, the court reformed it, 
in order to carry out the actual inten- 
tion of the parties. West v. Errissey, 
2 P. Wms. 350. 

Marriage articles under which par- 
ties agree to make a settlement and yet 
fail to do so, may, apart from the par- 
tial performance which marriage might 
be said to establish, afford one the right 
to damages as against the other. Jes- 
tony. Key, L. R.' 6 Ch 610. 

2 Rooke V. Lord Kensington, 2 Kay 
& Johns. 770 ; Peachey Mar. Settl. 565, 



576 ; Sanderson v. Robinson, 6 Jones 
Eq. 155; Love v. Graliam, 25 Ala. 187 ; 
Walker v. Armstrong, 2 Jur. n. s. 962 ; 
Brown v. Bonner, 8 Leigh, 1 ; Cook v. 
Fearn, 27 W. R. 212 ; Brown v. Brown, 
31 Gratt. 502 ; Russell's Appeal, 75 
Penn. St. 269. Correction made after 
the death of a spouse, in Burge v. 
Burge, 45 Ga. 301. 

3 Pierce v. Pierce, 71 N. Y. 154; 
Daubenspeck v. Biggs, 71 Ind. 255 ; 
Pond V. Skeen, 2 Lea, 126; Russell's 
Appeal, 75 Penn. St. 269. 

4 Everitt v. Everitt, L. R. 10 Eq. 
405 ; Dillaye v. Greenough, 45 N. Y. 
438. 

s As to construction of antenuptial 
settlements, see Schoul. Hus. & Wife, 
§ 361. Such settlements may renounce 
legal rights of the survivor in the estate 
of the spouse first dying. Ih. § 362. 
Or provide for settling after-acquired 
property. Ih. § 364. 

251 



§ 184 THE DOMESTIC RELATIONS. [PART II. 

erty rights, as though defrauded and deceived in the arrange- 
ment, there is no doubt that where she is of competent age 
she may bargain away her rights quite extensively under a 
marriage contract, as her husband likewise could have done ; 
provided, of course, that her deliberate intention to do so be 
made manifest ; and in this state of the law it certainly be- 
comes a matter of serious question what these fundamental 
property rights may be which spouses ought not reciprocally 
to relinquish.^ 



CHAPTER XIV. 



POSTNUPTIAL SETTLEMENTS ; GIFTS AND GENERAL TRANS- 
ACTIONS BETWEEN SPOUSES. 

§ 184. Postnuptial Settlements distinguished from Antenuptial ; 
Gifts between Spouses. — The important distinction between 
settlements before and settlements after marriage is that, 
while the former have the marriage consideration to support 
them, the latter are without it.^ The term " postnuptial set- 
tlements," then, must not confuse the reader's mind. We use 
the language of the text-writers without meaning to imply 
that it is appropriate, or that antenuptial and postnuptial set- 

1 Yeaton v. Yeaton, 4 111. App. 579. her own absolute keeping. Yet mar- 
Such reservations, however, as, e. g., to riage settlements miniit often be well 
dispose by will, if made, must be re- resorted to in order to equalize the 
spected. Bishop i'. Wall, 3 Cli. D. 194; burdens and privileges of matrimony, 
Rogers v. Cunningham, 51 Ga. 40; while our local legislation remains in 
Russell's Appeal, 75 Penn. St. 269 ; its present crude condition. If settle- 
Reynolds V. Brandon, 3 Heisk. 593. ments of property are made to the 

As to broach and forfeiture of rights wife's separate use, the usual equitable 
under a settlement, see Schoul. IIus. & rules apply, as to making the property 
Wife, § 308. Marriage settlements are liable for her debts and engagements. 
very common in England, among par- Tiie local registry system in the 
ties possessed of large means ; not gen- United States raises questions of con- 
erally so in this country, altliough structive notice, as to marriage settle- 
many are made in the Southern States ments and the property embraced there- 
and elsewhere. Tiie American policy in. Schoul. Hus. & Wife, § 369. 
is to dispense with trusts, and place a - Supra, § 172 ; Lannoy v. Duke of 
married woman's separate property in Athol, 2 Atk. 448. 

252 



CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 185 

tlements constitute two branches of one general subject. On 
the contrary, postnuptial settlements are usually nothing 
more nor less than gifts of real or personal property, or of 
both, between husband and wife, which equity places, not- 
withstanding the disabilities of coverture, upon the footing of 
other gifts. ^ Furthermore, it should be remembered that 
formal settlements made between parties in the marriage 
state, in pursuance of articles or memoranda signed before 
marriage, are not technically postnuptial settlements (as the 
name itself would seem to indicate) ; for the settlement 
relates back to the antenuptial stipulations, however loosely 
these may have been drawn up, and it is protected by 
the marriage consideration, like all other antenuptial con- 
tracts. 

But though, for want of consideration, postnuptial settle- 
ments are deemed voluntary, yet, like other voluntary trans- 
actions, they will be valid and binding, so far as the parties 
are concerned, and can only be impeached as fraudulent upon 
others. Postnuptial settlements, therefore, must be viewed 
in two different aspects : (1) as between the married parties 
and the creditor or purchasers of either ; (2) as between 
husband and wife themselves. These we shall consider in 
order. 

§ 185. Postnuptial Settlements as to Creditors and Purchasers ; 
Statutes 13 Eiiz. and 27 Eliz. — There are two English stat- 
utes which control this subject, as concerns creditors and 
purchasers, to a great extent, wherever the husband makes a 
postnuptial settlement upon his wife and offspring. The first 
is that of 13 Eliz. c. 5, in favor of creditors ; the second that 
of 27 Eliz. c. 4, in favor of purchasers ; the one being di- 
rected against fraudulent conveyances of all propert}^ with 
intent to defeat or delay creditors ; the other against fraudu- 
lent or voluntary conveyances of lands designed to defeat 
subsequent purchasers. These statutes, Lord Mansfield said, 
cannot receive too liberal a construction or be too much 



1 " Gift," in tlie more teclinical sense, the word here in its wider sense. 2 
concerns personal property, but we use Schoul. Pers. Prop. 55. 

253 



§ 18G THE DOMESTIC RELATIONS. [PART II. 

extended in suppression of fraud. ^ The bankrupt acts are 
material to consider in the former connection. 

§ 186. Same Subject ; Statute 13 Eliz. ; Bankrupt Acts. — As 
to the first of these statutes, it is held that, if a man who is 
indebted conveys property for the use of his wife and chil- 
dren, or in trust for their benefit, such a conveyance is sub- 
ject to the statute prohibition, inasmuch as the consideration, 
although good between the parties themselves, is not bona 
fide as regards creditors.^ But a voluntary deed is good as 
against subsequent creditors ; and there can be nothing in- 
equitable in a man's making a voluntary conveyance to a 
wife, child, or even a stranger, if it be not at the time preju- 
dicial to the rights of third persons, or in furtherance of some 
design of future fraud or injury to them.^ The question of 
fraudulent intent is the real point at issue. And as to fraud 
upon future creditors, it has been said that while an instru- 
ment might be executed with the purpose of defrauding 
them, it is not a thing very likely to happen.* The property 
which may be recovered by creditors does not embrace prop- 
erty which is exempt from execution ; for the creditors have 
no concern with anything except assets, actual or possible, 
for the payment of their debts.^ This was formerly a matter 
of dispute ; but it is now apparently set at rest. 

The statute of 13 Eliz. c. 5, is generally recognized through- 
out the United States ; in some cases having been formally 
re-enacted ; in others, claimed to be part of the common law 
transported hither by the first settlers ; and hence gifts of 
goods and chattels, as well as voluntary conveyances of lands, 
by writing or otherwise, are void when made with intent to 
delay, hinder, and defraud creditors, even though tlie gift or 
conveyance be to wife and children.^ For it is a maxim, both 

1 Cowp. 434 ; Peachey Mar. Settl. § "73, and cases citerl ; Jac. 552 
189. Peachey Mar. Settl. 195; 1 Atk. 93 

2 Goldsmith v. Russell, 5 De G. M. Turnley v. Hooper, 2 Jur. n. s. 1081 
& G. 547 ; Peachey Mar. Settl. 191. French v. French, 6 De G. M. & G. 95. 

3 Holloway v. Millard, 1 Madd. 414 ; ^ Peacliey Mar. Settl. 109 et seq. ; 
Peaciiey Mar. Settl. 192. 1 Story Eq. Juris. § 410. See 2 Kent 

4 Jcnkyn v. Vaughan, 25 L. J. Eq. Com. 443, n., 12th ed. 

.3-30; Holmes v. Penney, 3 Kay & Johns. ^ 2 Kent. Com. 440, 441, and cases 

102. See further, Schoul. Has. & Wife, cited ; Bayard v. Hoffman, 4 Johns. Ch. 

254 



CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 186 

at the civil and common law, that the claims of justice shall 
precede those of affection.^ And in general the rule appears 
to be co-extensive with the fraud in this country as in Eng- 
land. 

But it must be admitted the principle is not stated with 
equal precision in all the States ; and while some cases doubt- 
less proceed upon the doctrine that the voluntary gift fails 
because there is an intent to hinder and defraud, others again 
seem to rest upon the mere existence of actual creditors whose 
rights are thereby impaired or prejudiced. It is not Avithin 
our province to treat of this subject in its general bearings, 
as in gifts between man and man , but so far as tlie American 
decisions concern gifts between husband and wife, we shall 
presently give the results somewhat at length.^ According 
to the modern current of American authorities, mere indebt- 
edness at the time of a settlement is only presumptive proof 
of fraud, which ma}'- be exphiined or rebutted ; and it mast 
also be shown that the husband was insolvent, or that the 
settlement directly tended to impair the rights of creditors.^ 
The language of the statutes in some States contributes to 
the confusion which prevails as to the correct legal doctrine 
on this whole subject. Furthermore, our registry s^-stera 
places the law in a somewhat different footing from that 
prevalent in England, in all settlements, as we noticed in 
the preceding chapter.* 

Voluntary settlements, in England, are likewise affected by 
the bankrupt acts, which are intimately connected with the 
statute of Elizabeth.^ Here questions arise as to what acts 
amount to a contemplation of bankruptcy ; and what consti- 
tutes a fraudulent preference ; and these we need not here 
discuss. But it should be observed that the husband cannot 

450 ; Montgomery v. Tilley, 1 B. Monr. 463 et seq., where the subject is dis- 

157 ; Reade v. Livingston, 3 Johns. Ch. cussed at length, with citations from 

481; Pinney v. Fellows, 15 Vt. 525; American cases; post, § 187, note, with 

Simpson v. Graves, Riley Ch. 232 ; Sex- American citations as to creditors and 

ton V. Wheaton, 8 Wheat. 229 ; 1 Am. purchasers ; Schoul. Hus. & Wife, § 374. 
Lead. Cas. 1. ' Post, note, § 187. 

1 Cicero, de Off. I. 14, cited in 2 * Supra, § 183, n. 

Kent Com. 441. 5 Peachey Mar. Settl. 210 et seq. 

2 See 2 Kent Com. 440 et seq.; 4 ib. 

255 



§ 187 THE DOltfESTIC RELATIONS. [PART II. 

bestow his property upon his wife, conditional upon his future 
bankruptcy or insolvency ; yet, that third persons may, by 
voluntary conveyance, settle property to the wife's separate 
use, free from all control of her husband ; or in trust to pay 
the income to the husband for life, " or until he should become 
a bankrupt," and after that to the wife's separate use.^ In the 
former case the transaction would be simpl}^ an artifice of 
the husband to evade the bankrupt laws ; in the latter, a 
third person parts with his own property, and makes his own 
terms as to its final disposition, as he has a right to do.^ Our 
national bankruptcy system, as lately existing, also affected 
the doctrine of fraudulent conveyances in the United States.^ 
With the Bankrupt Act repealed, however, tliis whole sub- 
ject becomes regulated by State insolvent laws, which are 
far from uniform in their scope and puipose. As to artifices 
by a husband for keeping his own jDroperty under his own 
control, subject lo its di\'estinent in his wife's favor upon 
his bankruj^tcy, the AmericaE rule, like the English, dis- 
countenances them.* 

§ 187. Same Subject; Stat. 27 Eliz. — Settlements as con- 
cerns the right of creditors and purchasers are also affected 
b}'' the statute of 27 Eliz. c. 4. This statute, too, is to be 
considered as part of the common law brought to this country 
by our ancestors ; though not generally adopted here to the 
full extent of the English equity decisions.^ It provides that 
all conveyances of lands, made with the intent to defraud 
and deceive purchasers, shall, as against them, be utterly 
void. The statute has no application whatever to personal 
estate.^ 

The English doctrine is that a voluntary conveyance, 
though for a meritorious purpose, shall be deemed to have 

1 Manning v. Chambers, 1 De G. & ^ Re Alexander, 1 Lowell, 470. And 
Sm. 282 ; Sliarp v. Cosserat, 20 Beav. see Re Jones, 6 Biss. 68. 

473. Provisions for children are liable * Levering v. Heiglie, 2 Md. Ch. 

to this objection. 81 ; Head v. Halford, 5 Rich. Eq. 128 ; 

2 Ware v. Gardner, L. R. 7 Eq. 317. Peigne v. Snowden, 1 Desaus. 591. 
As to antenuptial provisions of this ^ 4 Kent Com. 403. 

character, see Schoul. Hus. & Wife, ^ Sugden Vend. & Parch. 587, 18th 
§ 365. ed. ; Peachey Mar. Settl. 226; 4 Kent 

Com. 463. 

256 



CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 187 

been made with fraudulent views, and must be set aside in 
favor of a subsequent purchaser for a valuable consideration, 
even though he had notice of the prior deed.^ In other 
words, while the statute of 13 Eliz. permits a voluntary con- 
veyance to stand as against subsequent creditors, that of 27 
Eliz. makes a voluntary conveyance of land void as against 
a subsequent purchaser for value. The principle on which 
the English cases rest appears to be that, by selling the prop- 
erty over again for a valuable consideration, the vendor so 
entirely repudiates the former transaction and shows his in- 
tention to sell, that the presumption against the prior gift 
becomes conclusive.^ And while the correctness of this prin- 
ciple might well be doubted in its application to subsequent 
purchasers with notice, yet, as Lord Thurlow said, so many 
estates stand upon the rule, that it cannot be now shaken.^ 
This doctrine applies to postnuptial settlements in England.* 
Fortunately in this country we have been hampered by no 
such severe construction of this statute. And in a case before 
the Supreme Court of tlie United States it was held that the 
principle of construction which prevailed in England at the 
commencement of the American Revolution went no further 
than to hold the subsequent sale to be presumptive, and not 
conclusive, evidence of a fraudulent intent in making the 
prior voluntary conveyance ; and the court declined to follow 
the subsequently established construction of Westminster 
Hall.^ And the better American doctrine seems to be that 
voluntary conveyances of land, bona fide made, and not 
originally fraudulent, are valid as against subsequent pur- 
chasers having record or other notice.^ 

In some States, the English statute is re-enacted with the 

1 Doe V. Manning, 9 East, 59. in such deeds, in order to deter piir- 

2 Doe V. Rusham, 17 Q. B. 724 ; 16 chasers. 

Jur. 359. 6 Cathcart v. Robinson, 5 Pet. 280. 

3 Evelyn v. Templar, 2 Bro. C. C. ^ 4 Kent. Com. 464, n., and cases 
148 ; Peachey Mar. Settl. 228, and cited ; Jackson v. Town, 4 Cow. 603 ; 
cases cited. Ricker v. Ham, 14 Mass. 139 ; Atkin- 

4 See Bill v. Cureton, 2 Myl. & K. son v. Phillips, 1 Md. Ch. 507; Sliepard 
510 ; Peachey Mar. Settl. 232, 240. And v. Pratt, 32 Iowa, 296 ; Beal v. Warren, 
English conveyancers insert words im- 2 Gray, 447. But cnntra, see Clanton 
porting certain valuable considerations v. Barges, 2 Dev. Cli. 13. 

17 257 



187 



THE DOMESTIC RELATIONS. 



[part II. 



language essentially changed ; as in Connecticut and New 
York. And it is the settled American doctrine that a hona 
fide purchaser for value is protected, whether he purchases 
from a fraudulent grantor or a fraudulent grantee ; and that 
there is no difference in this respect between a deed to de- 
fraud subsequent creditors, and one to defraud subsequent 
purchasers ; both being voidable only and not absolutely 
void.^ As to negotiable instruments not overdue, too, the 
usual equity rule may apply, which protects in general the 
rights of a hona fide holder for consideration and without 
notice of adverse claim or fraudulent intent.^ 



1 4 Kent Com. 464, and cases cited 
in notes ; Anderson v. Roberts, 18 Jolms. 
515 ; Bean v. Smith, 2 Mason, 252 ; 
Eldred v. Drake, 43 Iowa, 569 ; Orien- 
tal Bank v. Haskins, 3 Met. 332. So 
tlie Englisii Stat. 3 & 4 Will. IV. c. 27, 
§ 2(3, protects bona Jide purchasers for 
value. 

'^ Farmers' Bank v. Brooke, 40 Md. 
249. 

The following American cases may 
be cited with reference to the effect of 
a husband's postnuptial settlement as 
against his creditors, &c. See supra, 
§ 186. In several States it is ex- 
pressly held that a voluntary transfer 
or conveyance from husband to wife is 
valid against all subsequent creditors 
and purchasers. United States Bank 
V Ennis, Wright, G05; Beach v. AVhite, 
Walk. Ch. 495; Davis v. Ilerrick, 37 
Me. 397 ; Story v. ]\Iarshall, 24 Tex. 
305 ; Phillips v. Meyers, 82 111. 67. A 
postnuptial settlement is not invalid, it 
is recently declared by tiie Supreme 
Court of the United States, if rights 
of existing creditors be not impaired. 
Clark V. Killian, 103 U. S. Supr. 766 ; 
Jones V. Clifton, 101 U. S. Supr. 225. 
In New Jersey, however, the rule, as 
concisely stated, is that tlie husband's 
settlement, if voluntary, is fraudulent 
as to existing debts by an inference of 
law ; and, as to subsequent debts, fraud 
in fact must be proved. Annin v. An- 
nin, 24 N. J. Eq. 184 ; Belford v. Crane, 
1 C. E. Green, 265. This is the doc- 

258 



trine in New York and many other 
States, and indeed a preferable one, 
though the tendency is to regard in- 
tent. Reade v. Livingston, 3 Johns. 
Ch. 481, supra, § 1S6 ; Lyman v. Cess- 
ford, 15 Iowa, 229. And Chancellor 
Kent has ruled, in the leading Ameri- 
can case on tliis subject, that if a settle- 
ment after marriage be set aside by 
the prior creditors, subsequent credit- 
ors are entitled to come in and be paid 
out of the proceeds of the settled es- 
tate. Reade v. Livingston, 3 Johns. 
Ch. 481. That intended fraud, and this 
alone, should be considered, as to a 
husband's subsequent creditors, in case 
of his voluntary settlement for his wife 
and children, see Mattingly v. Nye, 8 
AYall. 370; Caswell v. Hill, 47 N. H. 
407 ; Phillips v. Wooster,36 N. Y. 412 ; 
Place V. Rjiem, 7 Bush, 585 ; Niller v. 
Johnson, 27 Md. 6; Teller v. Bishop, 8 
Minn. 226. The husband's condition 
as to his creditors is to be regarded 
with reference to the time he made the 
settlement upon his wife, not with ref- 
erence to the condition subsequently 
of liis estate upon his death. Leavitt 
V. Leavitt, 47 N. H. 329. Concerning 
the unfavorable effect of a secret agree- 
ment between husband and wife upon 
the rights of intervening creditors, ig- 
norant of such agreement, see Hatch 
V. Gray, 21 Iowa, 29; Annin v. Annin, 
24 N.J. Eq. 184; Phelps v. Morrison, 
lb. 195. A husband's voluntary con- 
veyance may, from its yevy substance, 



CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. 



§188 



§ 188. Same Subject; Settlement upon Valuable Consideration. 
— There are instances in which a postnuptial settlement has 
been sustained against creditors and purchasers on the ground 
that a valuable consideration is interposed.^ Very slight or 
technical considerations are often held sufficient to support a 
gift to the wife in English chancery .^ So voluntary settle- 
ments may become valid by matter ex 'post facto? 



be void as to all creditors, being an ar- 
tifice to keep his property out of liis 
creditor's hands in case of future insol- 
vency while using it in trade. Case v. 
Phelps, 39 N. Y. 164 ; supra, § 186. 
Equity will regard, in cases of this sort, 
the intent, notwithstanding a compli- 
ance with certain formalities of trans- 
fer on the husband's part. Metropolitan 
Bank v. Durant, 22 N. J. Eq. 35. That 
as to existing creditors, the husband's 
intent to defraud should be considered, 
which intent may be inferred from his 
insolvency or embarrassment, see the 
late cases of Redfield v. Buck, .3.5 Conn. 
328; Gardner v. Baker, 2-5 Iowa, 343; 
Woolston's Appeal, 51 Penn. St. 452; 
Bertrand v. Elder, 23 Ark. 494; Lloyd 
r. Fulton, 91 U. S. Supr. 479 ; Myers v. 
King, 42 Md. 65. 

The right of a husband to settle the 
surplus of property, over and above 
what he then owes, for the benefit and 
future comfort of wife and children, is 
liberally considered in Gridle}' v. Wat- 
son, 53 111. 186; Vance v. Smith, 2 
Heisk. 843; Brookbank v. Kennard, 41 
Ind. 339; White v. Bottis, 9 Heisk. 
645. But even here it is proper that 
abundant means for creditors should 
be reserved, nor should such a settle- 
ment be with a view of incurring debts 
in the future. Allen v. Walt, 9 Heisk. 
242. 

For instances where a husband's 
voluntary conveyance to his wife has 
been set aside as in fraud of creditors, 
see Clarke v. McGeilian, 25 N. J. Eq. 
423 ; Watson v. Riskamire, 45 Iowa, 
231 ; Annin v. Annin, 24 N. J. Eq. 184. 
See further, Davidson v. Lanier, 51 Ala. 
318 ; Bowser v. Bowser, 82 Penn. St. 
57 ; Nippes's Appeal, 75 Penn. St. 472. 



" Fraud," observes Mr. Justice 
Swayne in a recent case, " is always a 
question of fact with reference to the 
intention of the grantor. Where there 
is no fraud, there is no infirmity in the 
deed. Every case depends upon its 
circumstances and is to be carefully 
scrutinized. But the vital question is 
always the good faith of the transac- 
tion. There is no other test." Lloyd 
V. Fulton, 91 U. S. Supr. 479. In this 
case it was held that the husband's 
prior indebtedness, apart from insol- 
vency, &c., was only presumptive, and 
not conclusive, proof of fraud, and that 
the presumption was open to explana- 
tion. And see Patrick v. Patrick, 77 
111. 555; Booker v. Worrill, 55 Ga. 332; 
Kaufman v. Whitney, 50 Miss. 103. 
Yet transfers to the wife of an insol- 
vent debtor, and even purchases by her, 
are justly regarded with suspicion; 
and consideration from her separate 
estate must be established by affirma- 
tive proof. Seitz v. Mitchell, 94 U. S. 
Supr. 580; Kehr v. Smith, 20 Wall. 31. 

As to a settlement in favor of minor 
children, &c., see Schoul. Hus. & Wife, 
§ 378. 

1 Lord Harflwicke, in Ambl. 121. 
See further, Macq. Hus. & Wife, 277 ; 
3 Vern. 220; Ward v. Shallet, 2 Yes. 
Sen. 17 ; Lavender v. Blackstone, 2 
Lev. 147 ; Arundell v. Phipps, 10 Ves. 
140. 

- Peachey Mar. Settl. 23-3, 238; 
Butterfield v. Heath, 15 Beav. 414; 
Bayspoole v. Collins, L. R. 6 Ch. 228 ; 
Ex parte Fox, L. R. 1 Ch. D. 302 ; 
Schoul. Hus. & Wife, § 381. 

3 Peachey Mar. Settl. 236 ; 1 Sid. 
133; Brown v. Carter, 5 Ves. 877. 

259 



188 



THE DOMESTIC RELATIONS. 



[part II. 



In this countrj'', as also in England, a voluntary settlement 
by a husband upon his wife may become valid by matter sub- 
sequently arising.! The rule is general that, where any mar- 
riage settlement is for a valuable consideration, it cannot be 
avoided as fraudulent upon the creditors, unless both husband 
and wife were cognizant of the fraud ; her position here being 
the usual one of bona fide purchaser for value.^ And in nu- 
merous instances the equity courts of various States have 
sustained a postnuptial gift or transaction in the wife's favor 
and against the husband's creditors, on the ground that a 
valuable consideration was interposed.^ 



1 4 Kent Com. 463 ; Sterry v. Ar- 
den, 1 Johns. Cli. 261 ; Huston v. Can- 
trill, 11 Leigh, 136. 

2 Magniac v. Thompson, 7 Pet. 348 ; 
4 Kent Com. 463. The connection be- 
tween prior and subsequent, so as to 
sustain the consideration, should be 
shown. Cheatham v. Hess, 2 Tenn. 
Ch. 763. 

3 As where the husband has trans- 
ferred property to his wife in considera- 
tion of payment from lier separate 
estate. Simmons v. McElwain, 26 
Barb. 420 ; Bullard v. Briggs, 7 Pick. 
533; Ready v. Bragg, 1 Head, 611. 
And see Teller v. Bishop, 8 Minn, 226 ; 
Butterfield v. Stanton, 44 Miss. 15; 
Randall v. Lunt, 51 Me. 246 ; Reich v. 
Reich, 26 Minn. 97 ; Mix v. Andes Ins. 
Co., 16 N. Y. Supr. 397. And where he 
conveys what her equity entitles her to 
claim. Poindexter v. Jeffries, 15 Gratt. 
363. And where he has appropriated 
a like amount of his wife's property 
without her consent. Wiley v. Gray, 
36 Miss. 510. So where the wife pays 
her husband's debts from her separate 
earnings. Dygert v. Remerschneider, 
39 Barb. 417. Or releases her dower 
or homestead. Unger i'. Price, 9 Md. 
552 ; Randall v. Randall, 37 Mich. 563 ; 
Randies v. Randies, 63 Ind. 93 ; Nalle 
V. Lively, 15 Fla. 130 ; Payne v. Hutche- 
son, 32 Gratt. 812 ; Garlick v. Strong, 
3 Paige, 440; Hale v. Plummer, 6 Ind. 
121 ; Andrews v. Andrews, 28 Ala. 432. 
Or, in general, releases her interest in 

260 



his property. Davis v. Davis, 25 Gratt. 
587. Or advances money to the hus- 
band to buy land, even though it be 
conditioned upon paying and securing 
the money to her children. GoflF v. 
Rogers, 71 Ind. 459. Or where the 
husband is indebted to her for rents 
collected from her separate real estate. 
Barker v. Morrill, 55 Ga. 332; Kauf- 
man V. Whitney, 50 Miss. 103. Or 
upon any debt due her. French v. Mot- 
ley, 63 Me. 326 ; Brigham v. Fawcett, 
42 Mich. 542 ; Lahr's Appeal, 00 Penn. 
St. -507. Or a claim, generally, which 
grows out of the husband's appropria- 
tion of his wife's separate estate, if 
founded on an agreement to refund. 
Odend'hal c. Devlin, 48 Md. 439. See 
also Johnston v. Gill, 27 Gratt. 587 ; 
Thompson v. Feagin, 60 Ga. 82 ; Be- 
dell's Appeal, 87 Penn. St. 510. But 
not a claim for the husband's mere ap- 
propriation, without any such agree- 
ment to refund. Clark v. Rosenkrans, 
31 N. J. Eq. 665. See also Rose v. 
Brown, 11 W. Va. 122. And see Schoul. 
Hus. & Wife, § 380. 

But where the consideration ad- 
vanced by the wife is inadequate, 
equity will never sustain the settle- 
ment further than to secure the repay- 
ment thereof, and not always even to 
this extent ; especially if she be privy, 
with her husband, to a fraud upon 
others. Herschfeldt i-. George, 6 Mich. 
456; Skillman v. Skillman, 2 Beasl. 
403 ; Farmers' Bank v. Long, 7 Bush, 



CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 189 

§189. Postnuptial Settlements as between the Spouses. — 
The effect of a postnuptial settlement, as between the parties 
themselves, and independently of the rights of creditors and 
purchasers, claims our further attention for this chapter. 
Although a direct gift of property by the husband to the 
wife is void at law, it will be sustained in equity, so far 
as they are concerned and heirs and jDcrsonal representa- 
tives and assigns. In general, to constitute a voluntary 
gift between parties, it must be complete, or courts of equity 
will not enforce it ; and not only must the intention to give 
clearly appear, but that intention must have been executed.^ 
But the rule is more favorable as to a cestui que trust claim- 
ing against his trustee ; ^ and it is thus perceived why, on 
general principles, the intervention of a trustee is pref- 
erable to support such a settlement. All voluntary con- 
veyances, though void against creditors and purchasers for 
value, are good against the grantor and those claiming under 
him.^ 

A voluntary promise does not constitute a perfect gift. 
Nor is a voluntary assignment, unaccompanied by other acts, 
more effectual to confer a title on the donee than a mere 
agreement, as it has been repeatedly held in equity.* But 
there is some difficulty in reconciling the authorities on this 
latter subject.^ 

It has been repeatedly held, in chancery courts of the 
United States, that gifts of personal property or voluntary 
conveyances of real estate from husband to wife are, as be- 

337 ; Den v. York, 13 Ired. 206; Pusey Peacliey Mar. Settl. 245, 246 ; Meek v. 

V. Harper, 27 Penn. St. 469; 2 Kent Kettlewell, 1 Hare, 470; Kekewich r. 

Com. 174 ; William & Mary College v. Manning, 1 De G. M. & G. 192 ; Beech 

Powell, 12 Gratt. 372 ; supra, c. 12 ; v. Keep, 18 Beav. 289. 
Coates V. Gerlach, 44 Penn. St. 43. 3 Bill v. Cureton, 2 Myl. & K. 510; 

Statutory requirements, such as Doe v. Rusham, 17 Q. B. 724. 
registry, may affect postnuptial set- * Edwards c. Jones, 1 M. & Cr. 226; 

tlements as to creditors. And see Holloway v. Headington, 8 Sim. 324. 
other relative points, Schoul. Hus. & 5 gee Bridge v. Bridge, 16 Beav. 

Wife, §§ 380, 381. 321 ; McFaddyn v. Jenkyns, 1 Hare, 

1 Cotteen v. Missing, 1 Madd. 176 ; 462 ; Peacliey Mar. Settl. 247, 248 ; 
Kekewich v. Manning, 1 De G. M. & Penfold v. Mould, L. R. 4 Eq. 562 ; 
G- 188. Schoul. Hus. & Wife, § 384 ; Fox v. 

2 Ellison V. Ellison, 6 Ves. 662 ; Hawks, L. R. 13 Ch. I). 822. 

261 



§190 



THE DOMESTIC RELATIONS. 



[part II. 



tween themselves, valid, and such is now the rule in most, 
but not all, of the States ; the married women's acts in some 
jurisdictions creating a legal estate in the wife under such 
circumstances. The evidence of intention should be clear 
and distinct in all such cases.^ There should be a clear irrev- 
ocable gift to a trustee for the wife, or some positive act by 
the husband, by which he divests himself of the property, and 
engages to hold it for the wife's separate use.^ 

§ 190. The Same Subject. — But the circumstances under 
which the husband's transfer is made are always material. 
Thus a husband might have placed his earnings or property 
in his wife's hands for safe-keeping, and not as a gift to her, 



1 Borst V. Spelman, 4 Comst. 284 ; 
Coates V. Gerlach, 44 Penn. St. 43 ; Jen- 
nings r. Davis, 31 Conn. 134; George 
V. Spencer, 2 Md. Ch. Sbo ; Reynolds 
V. Lansford, 16 Tex. 286; Hunt v. 
Johnson, 44 N. Y. 27 ; Sims v. Rickets, 
35 Ind. 181 ; Kitchen v. Bedford, 13 
Wall. 413; Campbell!;. Galbreath, 12 
Bush, 459. 

2 But see Towle v. Towle, 114 Mass. 
167. As to a gift causa mortis, see post, 
cs. 15-17. 

It would appear to be the rule of 
some States, that the gifts of a hus- 
band require less proof than the gifts 
of third persons. Deming v. Williams, 
26 Conn. 226. In some States, how- 
ever, the wife is put upon strict proof 
as to all implied gifts. Gannard v. 
Eslava, 20 Ala. 733 ; Paschall v. Hall, 5 
Jones Eq. 108 ; HoUifield v. Wilkinson, 
54 Ala. 275. The precise extent to 
which the rule of a gift without a trus- 
tee will be enforced depends greatly 
upon the liberality of the married 
women's legislation in any particu- 
lar State. See Schoul. Hus. & Wife, 
§ 385 ; Underbill v. Morgan, .33 Conn. 
105; Brown !\ Brown, 23 Barb. 565; 
Jennings v. Davis, 31 Conn. 134 ; Wil- 
der V. Aldrich, 2 R. I. 518. But it is 
said that a man cannot denude him- 
self of bis marital rights in property 
which the law vests in liim by simply 
declaring that it belongs to his wife. 

262 



Wade V. Cantrell, 1 Head, 346. For 
the principles JippHcable to such gifts, 
see 2 Sch. Pers. Prop. Part. V. c. 2. 
Thus the promissory note of a creditor 
or other third party may thus be legally 
transferred by the husband to his wife 
under some of the married women's 
acts ; and independently of such stat- 
utes on equitable grounds. His volun- 
tary settlement of choses or incorporeal 
personalty upon her is good, prima 
facie ; and this may include an assign- 
ment of a claim due him. The hus- 
band may make a gift to his wife if 
depositing in some savings bank on his 
wife's separate account, by his acts 
binding the bank to account to her. 
Leaseliold property may be assigned 
to the wife by way of gift. Where 
the luisband gives corporeal property 
there should be some visible change of 
possession manifested ; and in gifts, as 
of furniture, of that which remains in 
the common dwelling-house, there may 
be difBculty in establishing a transfer. 
The wife may be the grantor, under 
due statutory formalities, of real estate 
from her husband, or of real and per- 
sonal property combined. Rents and 
profits may be secured to her exclusive 
beneficial use. But to prove the exe- 
cuted gift, so as to establish a bona fide 
transfer against the husband's cred- 
itors, involves, of course, the greater dif- 
ficulty. See Schoul. Hus. & Wife, §386. 



CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 190 

in which case title to the fund should be respected accord- 
ingly as between them ; or it might be regarded, perhaps, as 
bestowed for their joint benefit or that of the whole family 
upon due proof. Or the understanding might be that tlie 
transaction was to stand upon mutual consideration or by 
way of security.^ 

While instances of gifts or voluntary conveyances from 
husband to wife are most commonly considered, gifts from 
wife to husband are by no means rare. But in the latter 
instance fraud or undue influence may be reasonably sus- 
pected ; and transactions of this sort are scrutinized by the 
courts with great care.^ Before the wife's separate use was 
established in chancery, little or no occasion could arise for 
the wife to bestow her personal property upon lier husband, 
for the law sufiiciently bestowed it without her aid. 

If husband and wife may transfer property to one another 
without consideration, still more may they do so where the 
consideration is valuable. All such provisions, even if made 
without the intervention of a trustee, though void in law 
(independently of suitable married women's acts), may be 
enforced in equity if fairly made between the parties, and 
with no fraudulent intent upon others concerned;^ a rule 
which, with particular force, sustains an indebted husband's 
provision in his wife's favor, wholly or partially executed."* 

1 Marshall v. Crutwell, L. 11. 20 * See sjipi-a, § 188. And see Grouse 
Eq. 328 ; Adlard v. Adlard, 6-5 111. 212 ; v. Morse, 49 Iowa, 382. 

Edgerly v. Edgerly, 112 Mass. 175; * The husband's note or bond to 

Grain v. Shipnian, 45 Conn. 572 ; Lin- pay money in consideration that his 

ker V. Linker, 32 N. J. Eq. 174. See wife' would live with him is not a good 

further, Schoul. Hus. & Wife, § 388. consideration. Roberts v. Frisl)y, 38 

The husband's gift may be qualified Tex. 219 ; Ximines v. Smith, 39 Tex. 

instead of absolute, as in other instan- 49. Nor prior advances to the wife 

ces of gift. Jones v. Clifton, 101 U. S. disconnected with the settlement, and 

Supr. 225. made without expectation of repay- 

2 Cruger i-. Douglas, 4 Edw. Ch. ment. Perkins v. Perkins, 1 Tenn. Ch. 
433; Nedby y. Nedby, 11 E. L. & Eq. 537. But where the wife advances 
106 ; Be Jones, G Biss. 68 ; Converse v. money to her husband as his cred- 
Converse, 9 Rich. Eq. 535 ; Stiles v. itor, or the latter is indebted to her 
Stiles, 14 Mich. 72 ; Hollis v. Francois, upon any valid consideration, a fair 
5 Tex. 195 ; Wales v. Newbould, 9 Mich, conveyance or transfer may be made to 
45. As to gifts and loans of the wife's adjust or secure such liability. Kesner 
separate property to her husband, in- v. Trigg, 98 U. S. Supr. 50 ; Clougli );. 
eluding mortgages, see also supra, § 155. Russell, 55 N. H. 279 ; Sims v. Rickets, 

263 



§ 191 THE DOMESTIC KELATIONS. [PART II. 

The common-law requirement that trustees shall intervene 
in conveyances or transfers between husband and wife no 
longer prevails to any great extent, in England or the United 
States, as a doctrine of equity.^ But trustees are always 
desirable ; and in some States it is a rule that the husband 
and wife can only contract with one another through the in- 
tervention of third persons.^ 

§ 191. General Transactions bet-wreen Husband and "Wife. — 
In general, wherever a contract is just and reasonable of itself, 
and would be good at law when made with trustees for the 
wife, that contract will be sustained in equity, when made 
between husband and wife without the intervention of trus- 
tees,^ notwithstanding that at common law spouses could not 
make mutual contracts.^ But as to a wife, her contract preju- 
dicial to her interests is still so unfavorably regarded, that a 
statute must be explicit in order to bind her as to her execu- 
tory contracts or general engagements with her husband. 
The married women's acts, as yet, seldom permit of a wife's 
executory contracts with any one outside her separate estate 
or separate trade.^ But whatever the law will compel parties 

35 Ind. 181 ; Schoul. Hus. & Wife, § 391, Style, 3 P. Wms. 334 ; Barron v. Bar- 

and oases cited. Releases of dower ron, 24 Vt. 375 ; Resor v. Resor, 9 Ind. 

in husband's lands may furnish con- 347 ; Coates v. Gerlach, 44 Penn. St. 

sideration. Sykes v. Chadwick, 18 43 ; Wright v. Wright, 16 Iowa, 496 ; 

Wall. 141 (a statute case). Williams r. Maull, 20 Ala. 721 ; Schaffer 

As to transfers out of all proportion v. Reuter, 37 Barb. 44; Ilutton v. 

to the consideration, and apparently Duej'^, 3 Barr, 100; Sims v. Rickets, 

fraudulent, see Kelley v. Case, 18 Hun. 35 Ind. 181 ; McCampbell v. McCamp- 

472 ; Warren v. Ranney, 50 Vt. 653. bell, 2 Lea, 6G1 ; Myers v. Khig, 42 

And for contracts of this kind, specifi- Md. 65. 

cally enforced, see Livingston v. Living- * A mutual agreement, by which the 

ston, 2 Johns. Ch. 537. wife renounces all further claim upon 

1 Jones V. Clifton, 101 U. S. Supr. the husband for his services, or neces- 
225; Baddeley v. Baddelcy, 26 W. R. sary support for herself, and stipulates 
850 ; Thomas v. Harkness, 13 Bush, 23. that she will contract no debts on his 

2 McMuUen v. McMulien, 10 Iowa, account, while the husband renouncea 
412 ; Johnston v. Johnston, 1 Grant, all claim for her services or support, 
468 ; Pike y. Baker, 53 111. 163 ; Row- affords a strong illustration. This 
land V. Plummer, 50 Ala. 182. See might not avail against creditors, but 
further, Sohoul. Hus. & Wife, § 392, so far as the husband and his heirs, 
393, as to the rectification and construe- and in fact all who claim under him, 
tion of such settlements. are concerned, it will be enforced. Bar- 

3 Wallingsford v. Allen, 10 Pet. 583 : ron v. Barron, 24 Vt. 375. 

2 Story Eq. Juris. § 1204; Slanning v. ^ Bassett v. Bassett, 112 Mass. 99; 

264 



CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § "193 

to do, they may do voluntarily; and this is a principle appli- 
cable to transactions as between husband and wife, so far as 
equity may exercise jurisdiction in the case.^ 

§ 192. Transfer of Note from one Spouse to the Other ; Con- 
veyance. — A wife is not legally liable, in the absence of an ena- 
bling statute, upon a promissory note made by her, payable to 
her husband's own order, and by him indorsed over.^ And 
the husband's note, given to his wife and transferred by her, is 
equally void.^ 

A conveyance, by husband and wife, of land belonging to 
the wife, to a third person, and a conveyance of the same 
land by such third person to the husband, vests the entire 
title in the husband.'* But a conveyance of lands by the 
wife directly to her husband, especially if it be voluntary, 
has been considered ineffectual and void. So it is the older 
rule that the husband cannot convey real estate to his wife 
directly, and without the intervention of a trustee.^ But the 
husband may make a valid conveyance to his wife through 
the medium of a third person.^ 

The reason of this rule was the legal unity of husband and 
wife at the common law ; while the statutes of uses furnished 
a mode of conveyance through trustees.'^ 

§ 193. Conveyances or Transfers to Husband and Wife ; Effect. 
— It may here be added that, at the common law, a convey- 
ance of land to husband and wife and their lieirs vests the 
entirety in each of them ; and upon the death of one the sur- 
vivor takes the whole estate, discharged of the other's debts.^ 

Hogan V. Hogan, 89 111. 427 ; -Jenne v. 4 Merriam v. Harsen, 4 Edw. Ch. 

Marble, 37 Mich 319. Some statutes 70; Duranfc v. Ritcliie, 4 Mason, 45; 

are explicit enough for such purposes. Garvin y. Ingram, 10 Tlich. Eq. 130, 

Hamilton v. Hamilton. 89 111 349. And Bowen v. Sebree, 2 Bush, 112. 

see Schoul. Hus. & Wife, § 394 and ap- 5 Voorhees v. Presbyterian Church, 

pendix. 17 Barb. 103; Ransom z;. Ransom, 30 

1 SeeCampbelU'. Galbreath, 12 Bush, Mich. 328. 

459; Randall ('. Randall, 37 Mich. 563. 6 Schoul. Hus. & Wife, § 397. 

" Roby V. Phelon, 118 Mass. 541 Under some late local acts a wife may 

3 Hoker v. Boggs, 63 111. 161 ; Mor- convey directly to her husband, or the 

rison v. Thistle, 67 Mo. 596 ; Greer v. husband to the wife. lb. 

Greer, 24 Kan. 101 ; McCampbell v. i 1 Washb. Real Prop. 279. 

McCampbell, 2 Lea, G61. This rule is » Wright v. Sadler, 20 N. Y. 320; 

nov»^ clianged in many States. See Banton v. Campbell, 9 B. Monr. 587 ; 

Schoul. Hus. & Wife, § 396. Gilson v. Zimmerman, 12 Mo. 385 ; 

265 



§ 194 THE DOMESTIC KELATIONS. [PART II' 

The estate of entirety may be conveyed in fee or encumbered 
by the joint deed of husband and wife.^ And in some States 
legislation has abrogated this common-law doctrine of entirety 
altogether.2 

Where a promissory note, too, or other evidence of a debt, 
or personal securit}^ is made payable to a husband and wife 
jointly, it belongs to the survivor, and ma}'- be sued upon 
accordingly ; but not if the facts are inconsistent with that 
presumption of joint-ownership which a technical expression 
of this sort would afford ; and the drift of modern policy, we 
may add, is unfavorable to extending to personalty this rule 
of survivorship, applicable originally to real estate."^ 

§ 194. Questions of Resulting Trust between Husband and 
"Wife. — The question whether a resulting trust is established 
in certain property of husband or wife comes up constantly 
in the latest American cases, with the extension of equity 
jurisdiction in the States and the new married women's legis- 
lation. Issues of this sort are made up not only where the 
claim is that of a wife against her husband, or of a husband 
against his wife, but in controversies between either one and 
the creditors of the other. The decision must be according 
to the evidence adduced, which is usually oral, deference be- 
ing paid to the usual presumptions as between husband and 
wife ; but the ostensible title afforded by instruments of title 
or security standing in the name of the one is thus overthrown 
by proof that the property actually belonged by right to the 
other.* 

Equity, in recognizing husband and wife as distinct per- 
sons capable of contracting with one another and holding 

Schoul. Hus. & Wife, § 398, where this State, 53 Ind. 64; Sanford v. Sanford, 

subject is considered at length. 45 N. Y. 723 ; Johnson v. Lusk, G Cold. 

1 McUufi' V. Beauchamp, 50 Miss. 113. 

531. See Insurance Co. v. Nelson, 103 ' Wait v. Bovee, 35 Mich. 425. As 

U. S. Supr. 514. to joint investments by husband and 

2 And thus may the spouses be re- wife, and their joint liabilities, see 

garded as joint tenants or rather tenants Schoul. Hus. & Wife, § 400. 

in common. Cooper v. Cooper, 76 III. * See Schoul. Hus & Wife, § 400, 

57 ; Whittlesey v. Fuller, 11 Conn. 337 ; and cases, where this subject is further 

Clark V. Clark, 56 N. H. 105 ; Meeker discussed. And see ib. § 401, as to pur- 

f. Wright, 76 N. Y. 262; Abshire v. chases of one anothei-'s property. 

266 



CHAP. XV.] HUSBAND AS SURVIVOR. § 190 

property adverse to one another's claims, affords the relief 
appropriate to such a situation. Where either one is false to 
the other, and fraudulently or through coercion procures an un- 
just advantage, chancery will relieve against the tiansaction.^ 
§ 195. Insurance upon Husband's Life. — Insurance is fre- 
quently effected by a husband on his own life for the separate 
benefit of his wife ; a provision most just and honorable, if 
not so unreasonable in amount, with its incidental j^ajanent of 
premiums, as to defraud one's antecedent creditors.^ 



CHAPTER XV. 



DEATH OF THE WIFE ; RIGHTS AND LIABILITIES OF THE 
SURVIVING HUSBAND. 

§ 196. Husband's Right to Administer. — On the death of 
the wife, the husband becomes entitled to administer on her 
estate. The court having jurisdiction in such matters must 
issue letters to him, and to him alone, unless he renounce 
or decline. The foundation of this claim has been variously 
stated ; by some it is said to be derived from the statute 31 
Edw. Ill,, on the ground of the hu.sband's being " the next 
and most lawful friend " of his wife ; while there are other 
authorities which insist that the husband is entitled at com- 
mon law, jure mariti, and independently of the statutes. 
But this right, however founded, is now regarded in Eng- 
land as unquestionable, and is expressly confirmed by the 
statute 29 Car. II. c. 3 (amendatory of statute 22 & 23 Car. 
II. c. 10), which enacts that the statute of distributions 
" shall not extend to the estates of femes covert that shall die 
intestate, but that their husbands may demand and have 
administration of their rights, credits, and other personal 

1 Case V. Colter, 66 Ind. 336 ; Stone 2 Schoul. Hus. & Wife, § 404. Stat- 
ic. Wood, 85 111. 603 ; Tucker's Appeal, utes affect this right in nearly all of 
75 Penn. St. 854 ; Schoul. Hus. & Wife, the States. lb. appendix. 
§§ 389, 403. 

267 



§ 197 THE DOMESTIC EELATIONS. [PART U. 

estates, and recover and enjoy the same as they might have 
done before the making of the said act." ^ Tliis same right 
of the husband is generally, though not universally, recog- 
nized in this country, and in the different States there are 
statutes which regulate the subject of administration ; and 
these statutes are usually found to recognize and confirm the 
husband's preferred right to administer upon his wife's estate.^ 

To this rule some exceptions have been introduced, how- 
ever, in later years, both in England and the United States, 
owing chiefly to the modern facilities for separation and 
divorce, and the enlarged capacity given to the wife to act as 
a feme sole, and to dispose of her own property.^ 

Shice, as we have already seen, the husband takes abso- 
lutely his wife's personal cJioses in possession at the common 
law by virtue of the marriage, and, if he be the survivor, her 
chattels real likewise, there would generally appear to be no 
object gained in seeking letters of administration on her 
estate, under the coverture doctrine, unless she had choses in 
action unrecovered at the time of her death. But a case 
might arise, besides, where he had a just claim against her 
estate, and wished to enforce it by a sale of her real estate as 
administrator. Or he might intend to prosecute a suit. Or 
letters of administration might be desirable for the purposes 
of creditors. And peculiar considerations apply sometimes, 
as we shall presently see, to what we term the wife's separate 
property, even after her death. Cases, moreover, in these 
days are found, where a husband is made the executor under 
his wife's will.^ 

§ 197. The Same Subject ; Assets for Wife's Debts. — There 
is a common-law distinction between property acquired by 

1 Wms. Ex'rs, 4th Am. ed. 336 et rity, without citing the father. Goods 

seq. of Stephenson, L. R. 1 P. & D. 285. 

2 2 Kent Com. 135; ib. 410. And in this country the marital rights 

3 Thus, in a late English case, where of the husband over the wife's unad- 
a married woman lived separate from ministered property, when her death oc- 
her husband, after having obtained an curred during a state of separation for 
order of protection, and then died, his misconduct, have been sometimes de- 
leaving him and a minor son, admin- nied. Cooper r. Maddox, 2 Sneed, 135. 
istration was granted to a guardian * Martin v. Foster, 38 Ala. G88. See 
elected by the son, upon proper secu- Schoul. Hus. & Wife, Part VIII. c. 5. 

268 



CHAP. XV.] HUSBAND AS SURVIVOR. § 198 

the husband absolutely by virtue of marriage, and property 
acquired in his representative capacity as her administrator 
or executor. The former is his own, free from all demands 
of his wife's creditors. But the latter comes to him only by 
way of distribution, after payment of all just debts against 
his wife's estate.^ In the case of an antenuptial debt, he 
who married the woman indebted became responsible under 
qualifications, ceasing to be responsible, however, upon his 
wife's decease.^ Debts contracted by the Avife during mar- 
riage follow a somewhat different rule at the common law; 
for either they are the debts of the husband or no legal debts 
at all ; ^ and if his debts, he must be held responsible in his 
personal, and not a fiduciary capacity. 

The modern change of policy with regard to a wife's debts, 
whereby the wife may hold separate property upon which 
her separate liabilities should be fastened, occasions an obvi- 
ous departure in the latest decisions and statutes. Hence 
the statute rule now introduced into many States, that the 
husband shall be held liable as administrator on the estate of 
his wife for her debts, only to the extent of the assets re- 
ceived by him.^ 

§ 198. Surviving Husband's Rights in Wife's Personal Prop- 
erty. — We have seen that at the common law, and conforma- 
bly to the doctiine of coverture, marriage operates as a gift 
to the husband of the wife's personal property, both principal 
and income, whether acquired by her before or during the 
marriage state ; but with this qualification, that, so far as 

1 A notable case in point is that of after it had been recovered, tlio creditor 

Heard v. Stamford, where a single should be satisfied ; but that no claim 

woman contracted a debt for which she could be enforced against the former 

gave her promissory note of £50. She portion. Heard v. Stamford, Cas. 

afterwards married, and brought to her temp. Talb. 173; 3 P. Wms. 409; 

husband a fortune of £700. On her Macq. Hus. & Wife, 188. And see Het- 

death it appeared that the husband rick v. Hetrick, 13 Ind. 44 ; Donning- 

had acquired a portion of this fortune ton v. Mitchell, 1 Green Ch. 243. 

during coverture; the other portion ^ Supra, §§ 56, 57. 

was still outstanding at her death as a ^ ggg jjjn „ Goodrich, 46 N. H. 41 ; 

chose in action, and could only be re- Bain v. Doran, 54 Penn. St. 124 ; supra, 

covered by the late husband as her ad- § 59. 

ministrator. Lord Chancellor Talbot * See N. Y. Rev. Stat. Vol. II. p. 75; 

decided that from the latter portion, Schoul. Hus. & Wife, appendix. 

269 



§ 198 THE DOMESTIC RELATIONS. [PART II. 

choses in action are concerned, or incorporeal personalty, he 
must reduce to possession while marriage lasts, in order to 
make the property absolutely his own.^ Hence choses in action 
unrecovered at her death belong, technically speaking, to her 
estate. The wife's earnings were the husband's ; ^ and as to her 
chattels real, if he survived her, they became his absolutely .^ 

In these days, it becomes important to understand how far 
the modern creation of a separate estate in the wife's favor 
may have modified this doctrine to the husband's detriment. 
The equitable rule, so familiar to England, has been that the 
separate use ceases with the marriage state ; so that, subject 
to the restrictions of a trust under which the wife miglit have 
acquired any specific separate property, or her possible dispo- 
sition of separate property during her lifetime (no clause of 
restraint impeding her), the surviving husband became enti- 
tled to whatever was left, under tlie rules and subject to the 
limitations of the common law. That is to say, as to personal 
property, her choses in jjossession vested in him absolutely, 
and also her chattels real, while choses in action might be 
recovered for his benefit in due course of administration.* 
The United States rule of equity appears to have treated the 
separate estate as ceasing upon the wife's death with similar 
consequences.^ Generally speaking, both in England and 
this country, the fact that a husband allows his wife to treat 
and deal with, as her own, property acquired by her inde- 
pendently of tlie married women's acts, is not inconsistent 
with his intention to assert his marital rights to it if he sur- 
vive ; neither, if he allows her to dispose of the income and 
loan it on promissory notes running in her own name, would 
such income become thereby converted into her separate 
estate.^ Moreover, the married women's acts themselves, in 
the absence of unequivocal language, do not change the com- 
mon-law rule with reference to separate personal propert}' of 
a married woman, not disposed of in her life nor by will ; but 

1 Schoul. Hus. & Wife, § 148. < Ih. § 106. And as to real estate, 

2 lb. see ib. § ino, anrl post, § 201. 

3 76. § 164. 6 Svpra, § -2?,^,. 

6 Ryder v. Hulse, 24 N. Y. 
270 



CHAP. XV.] HUSBAND AS SURVIVOE. § 198 

it goes to her surviving husband by virtue of his marital 
rights in the same manner as under the old law.^ 

By the English statutes of distribution, therefore (and per- 
haps by the common law), not only is the husband entitled to 
administer upon his wife's estate in preference to all others, 
but, subject to the payment of such debts as bind him upon 
surviving her, he recovers her outstanding personal property 
to his own use and enjoyment, including rights vested and 
contingent, and funds at her disposal during her lifetime or 
held in trust for her, save so far as he may be excluded by 
the terms of the trust. Even if he does not take out let- 
ters of administration, he is equally entitled to the property .^ 
He is therefore said, when he administers, to administer for 
his own benefit, being the party in interest preferred to all 
others, so far as personal estate is concerned. And since hus- 
band and wife are not, properly speaking, next of kin to one 
another, the title the husband thus acquires may be desig- 
nated as a title jure mariti under the statutes of distribution.^ 
But with the modern recognition of separate use, an exer- 
cise of the wife's testamentary appointment or will may be 
found to interfere with the husband's rights both as surviving 
administrator and distributee. 

Furthermore, the principle that the husband administers 
exclusively for his own benefit on his wife's estate is incom- 
patible with the legislation of some States. For in this coun- 
try the modern tendency is not only to enlarge the wife's 
power of testamentary disposition, but to require administra- 
tion to be taken out in all cases where a married woman with 
a separate estate dies intestate ; nor is the surviving husband 
in all the States absolutely preferred to kindred either as 
administrator or distributee.* 

1 Eansom v. Nichols, 22 N. Y. 110; Sclioul. Hus. & Wife, § 409; Cox v. 

"Wilkinson v. Wright, 6 B. Monr. 576 ; Morrow, 14 Ark. 603 ; Nelson v. Goree, 

Brown u. Brown, 6 Humph. 127. 34 Ala. 505; Baldwin v. Carter, 17 

- Clough V. Bond, 6 Jur. 50. Conn. 201 ; Curry v. Fulkinson, 14 

3 2 Bl. Com. 515 ; Watt v. Watt, 3 Ohio, 100 ; Gill v. Woods, 81 111. 04 ; 

Ves.246,247;2KentCom. 136;Schoul. Wilson v. Breeding, 50 Iowa, 629; 

Hus. & Wife, §§ 409, 414, and authori- Woodman v. Woodman, 54 N. H. 226. 
ties cited. Postnuptial transactions between 

* Holmes v. Holmes, 28 Vt. 765 ; husband and wife give rise to delicate 

271 



§ 199 THE DOMESTIC RELATIONS. [PAET n. 

§ 199. Husband's Obligation to bury Wife: Rights correspond- 
ing. — Every husband is bound, at the common law, to bury 
his deceased wife in a suitable manner ; that is to say, he is 
bound to defray all necessary funeral expenses. Even when 
a wife dies who had been living separate from her husband, 
it is held that her surviving husband must provide her Avitli a 
funeral at a reasonable expense ; and, if he neglects to do so, 
any person who voluntarily employs an undertaker for that 
purpose, and pays him for his services, is entitled to recover 
the sum thus expended from the husband in an action at 
law.^ So, too, where the wife died during the absence of 
her husband abroad, so that it was necessary for another to 
superintend the funeral.^ And it is held that even an infant 
husband may contract for the interment of his deceased wife, 
or lawful children, so as to be bound by his contract. The 
contract will have validity, because it is a contract for the 
burial of those who are personce conjunctce with him by 
reason of the marriage, and as such it is to be regarded as a 
contract for his own personal benefit.^ 

These points were decided in England, and it is believed 
that a similar rule prevails in most, if not all of the States; 
several recent decisions in point confirming this opinion.* 
As to the further question, whether under the late married 
women's acts, and our modern policy of conferring upon the 
wife a separate estate, the husband's obligation binds him to 
such an expenditure absolutely, so that he can neither make 
a claim on her separate estate tor reimbursement, nor take 
that separate estate, discharged of all marital trusts, as his 
own, subject to the settlement of just debts and charges, the 
burial expenses included, we cannot lay down with confi- 
dence at this stage.^ 

questions in the courts after the wife's Eq 361 ; Bradshaw v. Beard, 12 C. B. 

death, where modern practice permits n. s. 344. 

of an administration in conflict with " Jenkins v. Tucker, 1 H. BI. 90. 

the surviving husband's interests. See 3 Cliapple v. Cooper, 13 M. & W. 

Sciioul. Hus. & Wife, § 411, and cases 252. 

cited; Gill v. Woods, 81 111. 64; Hus- ' Smyley r. Reese, 53 Ala.89 ; Sears 

ton V. Cone, 24 Ohio St. 11; Barrack v. Giddey, 41 Mich. 590; McCue v. 

V. M'CuUocli, 3 Kay & J. 110 ; Her- Garvey, 21 N. Y. Supr. 5G2 ; Cunning- 

rington v. Robertson, 71 N. Y. 280. ham v. Reardon, 98 Mass. 538. 

1 Ambrose v. Kenison, 4 E. L. & ^ That a husband is proximately 

272 



CHAP. XV.] 



HUSBAND AS SURVIVOR. 



§200 



§ 200. Death of Husband Pending Settlement of Wife's Es- 
tate. — Where the husband himself dies before the wife's out- 
standing personal chattels are recovered, his next of kin will 
be entitled to them in equity. This is the rule in England ; 
also in America, wherever, at all events, the husband's right 
to administer for his own benefit is recognized ; for it is the 
necessary consequence of that doctrine. In England a some- 
what circuitous course was formerly taken in such cases : 
but this is done no longer. If the husband dies, leaving 
assets of his wife unadministered, the more rational rule has 
been that right of administration follows the right of estate, 
and devolves upon the husband's next of kin.^ 



liable for his wife's funeral expenses, 
and is bound to bury his wife, admits 
now of no question. Even if an adult 
son assisted in giving orders to the un- 
dertaker, tliis does not relieve the hus- 
band. Sears v. Giddey, 41 Mich. 590. 
Smyley v. Reese, 53 Ala. 89, inclines to 
treat this obligation as one somewhat 
like that of supplying necessaries, so 
as to deny to the husband any credit 
for such expenditure in tho settlement 
of his wife's estate. But see comments 
in Schoul. Hus. & Wife, § 412 ; also 
McCue V. Garvey, 21 N. Y. Supr. 
662. 

In further recognition of the hus- 
band's paramount right in matters rela- 
tive to his wife's burial, it is held in 
Massachusetts that a husband who has 
interred his wife in a public burial- 
ground is not liable as a trespasser for 
removing a gravestone, since placed at 
her grave by her mother, witliout injur- 
ing the stone, and for the purpose of 
substituting another. Durell v. Hay- 
ward, 9 Gray, 248 ; and that the right 
of removing the remains is his. See 
bill in equity in Weld v. Walker, 130 
Mass. 423. 

Certainly where separation took place 
under circumstances which should ren- 
der the husband liable for his wife's 
subsequent support, he is liable for her 
necessary funeral and burial expenses 
also. Cunningham v. Reardon, 98 Mass. 
538. And see Sears v. Giddey, 41 
18 



Mich. 590; Hodgson v. Williamson, 42 
L. T. 076. But how far the divorce laws 
may affect the husband's obligation and 
right of burial is not yet clearly deter- 
mined. See further, Schoul. Hus. & 
Wife, §§ 413, 414. 

- Roosevelt v Ellithorp, 10 Paige, 
415 ; Bryan v. Rooks, 25 Ga. 622 ; 
Ward V. Thompson, 6 Gill & J. 349 ; 
Patterson v. High, 8 Ired. Eq. 52; 
Schoul. Hus. & Wife, § 415 ; Fielder v. 
Hanyer, 3 Hag. Ecc. 770. But cf. Bell 
Hus. & Wife, 52. 

In a late English case the defendant 
received money for a married woman, 
and wrote to her that he held it at her 
disposal. The wife died, and then the 
husband, who had not interfered in the 
matter ; and the wife's administratrix 
sued the defendant for money had and 
received to the use of the wife. It was 
held tiiat the wife's administratrix, 
rather than the husband's representa- 
tive, could maintain the action. Fleet 
V. Perrins, L. R. 4 Q. B. 500 ; s. c. L. 
R. 3 Q. B 536. But cf. Coleman v. 
Hallowell, 1 Jones Eq. 204. In another 
English case a female took administra- 
tion of the estate of a deceased person 
as creditor, got in a large part of the 
estate, and paid some of the debts ; she 
afterwards married and died. The hus- 
band had taken possession of lease- 
holds, part of the estate, but no fund 
had been set apart for the payment of 
the wife's debt. It was held that ad- 

273 



§ 201 THE DOMESTIC HELATIONS. [PART II. 

§ 201. Rights in "Wife's Heal Estate ; Tenancy by the Cur- 
tesy. — The surviving husband's rights in the real estate of 
his deceased wife remain to be noticed. The immediate 
effect of coverture, as we have seen, is to invest the husband 
Avith the usufruct of all real estate owned by the wife at the 
time of her marriage, and of all such as may come to her 
during coverture ; this usufruct being in the nature of a free- 
hold, with beneficial enjojaiient of rents and profits, and last- 
ing, at all events, during their joint lives.^ 

But the husband at the common law may acquire, upon a 
certain condition, an enlarged life interest in his wife's lands, 
and in estates of inlieritance of which she was seised in pos- 
session during coverture, so as to extend beyond her life if he 
survives her ; in other words, he may be a tenant b}^ the cur- 
tesy. Tenancy by the courtesy, or tenancy by curtesy, is a 
freehold estate in the husband for the term of his natural 
life. He acquires it by the fact that a child capable of inher- 
itance is born of the marriage. The meaning of the term is 
somewhat obscure. Some have thought the word " curtesy " 
signifies the favor or courtesy with which the law regards the 
husband. Others that it comes from the Latin word cu?-tis, 
and has reference to the feudal custom which permitted the 
husband, as soon as a son was born, to attend court as one of 
the pa7'es curice, and do homage without his wife. But there 
is reason to believe that tenancy by the curtesy existed in 
the civil law during the reign of Constantine.^ This privi- 
lege of the husband extends to all lands and tenements of 
which the wife was seised at any time during coverture, 
whether legal or trust estate, whether in fee-simple or by way 
of remainder or reversion. ^ The common law affords herein a 
rare but positive instance of public policy discriminating in 
favor of marriage, accompanied by the propagation of children. 

ministration of the unadministered ef- ^ Washb. Real. Prop. 128, and au- 

fects of the deceased could not be taken tliorities cited ; 2 Bl. Com. 126, and 

by tlie husband in his own right as a notes by Chitty and others ; 2 Briglit 

creditor, but only as a representative Hus. & Wife, 116. 
of his wife. Goods of Risdon, L. R. 1 ^ //;. . Co. Litt. 30 a ,- ib. 29 a, n. 165 ; 

P. & D. 637. Watts v. Ball, 1 P. Wms. 109. 

1 Schoul. Hus. & Wife, §§ 167, 181 ; 
suvra, § 89. 

274 



CHAP. XV.] HUSBAND AS SUKVIVOR. § 202 

§ 202. Tenancy by the Curtesy; Subject continued. — Four 
things are essential, at common law, to entitle a husband to 
curtesy. First. A lawful marriage. Second. Seisin of the 
wife at some time during coverture. Tliird. Birth alive of 
issue capable of inheritance. Fourth. Death of the wife. 
After the birth of the child the husband's title to curtesy 
becomes possible ; and the curtesy is then initiate. After 
the death of the wife the title to curtesy becomes complete ; 
and the curtesy is then consummate.^ For a full description 
of curtesy, with its incidents, the reader is referred to ele- 
mentary works on the law of Real Estate.^ 

Questions concerning this estate are most commonly raised, 
however, with reference to the second essential above stated. 

Of late years tenancy by the curtesy has become practi- 
cally infrequent in England by reason of the prevalence of 
marriage settlements excluding such right.^ In this country 
it has existed in all of the older States, but is modified in 
some of them, expressly or by implication, by late statutes. 
In Iowa and Indiana, curtesy is expressly abolished, and a 
certain defined interest in the wife's real estate, of the dower 
sort, goes to her husband instead by way of inheritance. In 
Texas, California, Louisiana, and other States where the ten- 
ure of real estate comes from the community or civil law, 
rather than the common law, curtesy is not recognized. In 
some of the States the right of curtesy appears to be denied 
to husbands who wilfully neglect and desert their wives. In 
most New England States, and in various other parts of the 
country, tenancy by the curtesy is expressly reserved by 
statute.* It is decided that curtesy still exists in New York, 
though doubts were at one time entertained ; and under 
statute qualifications, or independently of them, curtesy ob- 



1 1 Washb. Tical Prop. 130. cited in 1 Waslib. Real Prop. 258, and 

. .2 1 Washb. Real Prop. 127 ft seq. ; note ; and notes to 4 Kent Com. 34. 

Williams Real Prop. 8th ed. 218 ; 4 Statute provisions as to curtesy and 

Kent Com. 27-35. And see Schoul. dower are frequently alike- And see 

Hus. & Wife, §§ 420-423. Schoul. Hus. and Wife, § 424, and Ap- 

* Wms. Real Prop. 187 , 1 Washb. pendix for changes, some of which (as 
Real Prop. 120. in Massachusetts for instance) are very 

* See statutes of different States recent. 

275 



§203 



THE DOMESTIC RELATIONS. 



[part II. 



tains in perhaps the majority of States. Indeed, curtesy 
consummate, under the married women's acts, is found pro- 
tected, notwithstanding the husband's usufruct during his 
wife's life is taken away or modified.^ In some States the 
interest of the husband in his deceased wife's real estate is 
an absolute one in fee ; '^ or curtesy is conferred regardless 
of the birth of a child.^ 

§ 203. Husband's Claims against "Wife's Real Estate ; Improve- 
ments, &c. — Inasmuch as the husband's interest in his wife's 
lands is limited to the usufruct as a life-tenant, and Anglo- 
Saxon policy has been that landed property should descend 
to one's blood relations, it follows that all claims presented 
by him against her real estate, after her death, in relation to 
such property, will be closely scrutinized. Thus it has been 
held that he cannot claim reimbursement for moneys paid in 
settling controversies in regard to the title of his wife's real 
estate.* So the general rule is strict as regards improvements 
made by the husband upon his wife's real estate.^ 



1 Porch V. Fries, 3 C. E. Green, 
204; Lynde v. McGregor, 13 Allen, 
182. 

2 Hooper v. Howell, 52 Ga. 315; 
1 Washb. 129. 

3 1 Washb. 129 ; Elliott v. Teal, 5 
Sawyer, 249. 

4 Campbell v. Wallace, 12 N. H. 
362; Burleigh v. Coffin, 2 Fost. 118. 
And see Warren v. Jennison, 6 Gray, 
559. But see 2 Story Eq. Jur. § 1023 ; 
Pitt V. Pitt, 1 Turn. & Russ. 180; 
Shrewsbury i". Shrewsbury, 1 Ves. Jr. 
23.3 ; Jenness v. Robinson, 10 N. H. 
218. 

5 The English doctrine is, thatif tlie 
husband erects buildings upon his wife's 
lands, or otherwise makes permanent 
improvements thereon, expending Ins 
own money for such purpose, the pre- 
sumption is that he intended the ex- 
pense for his wife's benefit, and he can- 
not recover for it. 1 Roper Hus. & 
Wife, 54 ; Campion v. Cotton, 17 Ves. 
264; 1 Washb. Real Prop. 281 Seve- 
ral cases ol this sort have come before 
our own courts quite recently, the 

276 



claims being usually presented after 
the wife's death ; and this prmciple has 
been rigidly applied, though doubtless 
occasioning in some instances positive 
hardsliip and wrong. Burleigh v. Cof- 
fin, 2 Fost. 118, White y. Hildreth 32 
Vt. 265. Brevard /; Jones, 50 Ala 221; 
Washburn ?-. Sproai, 1 6 Mas'* 449 See 
also, Sclioul. Hus. & Wife, § 42-'"). 

Concerning tlie wills of married 
women, the law of which is greatlyafleci- 
ed by recent statutes which tend to place 
husband and wife on a mutual footing, 
and enlarge the wife's capacity in equity 
to make testamentary disposition of 
her separate estate, see, at lengtli, 
Schoul. Hus. & Wife, §§ 457-470, and 
appendix. So, too, as to a wife's testa- 
mentary appointment in execution of a 
power. Ih § 470. Tiie husband's as- 
bent has been an important element in 
such cases until quite recently. Ih. 
§ 458. 

The marriage of a woman was for- 
merly deemed a revocation of her will 
executed while single, while marriage 
and the birth of a child was the rule 



CHAP. XVI.] SURVIVING WITE's RIGHTS. § 205 



CHAPTER XVI. 

DEATH OF THE HUSBAND ; RIGHTS AND LIABILITIES OF 
THE SURVIVING WIFE. 

§ 204. Widow's Right to Administer. — On the dissolution 
of a marriage by tlie death of the husband, the widow is usu- 
ally selected to administer upon his estate, provided she be 
willing and competent to take the trust. But her right of 
administration on her husband's estate is not coextensive 
with that of the husband on her estate. For in the one in- 
stance the husband is to be preferred to all others ; whereas, 
in the other, administration may be granted by the court, at 
discretion, either to the widow alone, or to the next of kin, 
or to both together.^ This is the law in England, and the 
same prevails generally in this country, under the statutes of 
the different States." 

§ 205. Widow's Distributive Sliare in Personalty. — Under 
the English statute of distributions, 22 & 23 Car. II. c. 10, 
the widow surviving her husband, who deceased intestate, is 
entitled to one third of the personal property which remains 
after payment of the husband's debts, while the remaining 

applied to a man. Recent statutes p. 74, Rev. Stats.), the widow and next 
tend to place tlie spouses on an equal of kin are designated. Grant of ad- 
footing in tliis respect. Schoul. Hus. ministration revoked, wiiere it appeared 
& Wife, §§ 442, 457. And see 1 Redf. tiiat tlie marriage under which E. 
Wills, 24, 297 ; 3 Jarm, Wills, 5th Am. claimed to be widow was void. O'Gara 
ed. 783. V. Eisenlohr, 38 N. Y. 296, And see 

1 1 Salk. 30 ; 11 Vin. Abr. 92 Anon. Mack v. State, 63 Ala. 138. 

Stra. 552 ; Macq. Hus. & Wife, 145 ; As to administration de bonis non, of 

Case of Williams, 3 Hag. Ecc. 217. the husband's estate, where the widow 

See Goods of Ihler, L. R. 3 P. & D. 50, took out administration, carried on her 

as to right of a widow, having lived late husband's business, and then died 

separate from her husband, to admin- intestate and insolvent, see Fairland v. 

ister. Percy, 3 P, & D. 217. And see, gen- 

2 2 Kent Com. 410, 411, and notes, erally, Widgery v. Tepper, 5 Ch. D. 
But by the New York statutes (vol. 2, 516. 

277 



§ 205 THE DOMESTIC EELA.TIONS. [PART II. 

two thirds go to the children or their representatives.^ The 
widow's share is not unfrequently termed her " thirds," or 
incorrectly her " thirds of personal estate at common law." ^ 
The statute further provides that when the husband dies in- 
testate, leaving a widow only and no lineal descendant, the 
widow is entitled to a moiety, or half of his personal estate, 
and the other half goes to the husband's next of kin. When 
there are no next of kin, the widow is not entitled to the 
whole of her husband's personal estate ; but one half belongs 
to her, and the other half goes to the crown.^ Here, too, the 
wife's right is not coequal with that of her husband ; for he 
surviving her takes the whole of her personal estate ; while she 
surviving him cannot in any event be entitled to more than 
one half of his personal estate, even though the estate con- 
sisted wholly of property which belonged to her before mar- 
riage. It is held that the widow of a deceased child cannot 
take as a representative of such child under the statutes of 
distribution.^ The husband and wife, by a marriage settle- 
ment, may exclude one another from all benefits by way of 
distribution in their respective estates, other provisions hav- 
ing been substituted by way of recompense.^ In this country 
the statute of Charles II. is at the basis of our legislation 
regarding the estates of intestates, though modifications are 
frequently to be met with.^ 

It is held that a bequest to the wife by the husband, in full 
of her legal claims, is no bar to her right to a distributive 
share in a lapsed bequest.'^ So acts of the husband during 
his lifetime, committed for the purpose of defrauding the wife 
of her distributive share in his personal estate after his de- 
cease, have been set aside in equity.^ 

1 2 Bl. Com. 515, 516. 5 Earl of Buckinghamshire 2;.Drury, 

2 See Lord Cottenham, in Gurley v. 2 Eden, 60. 

Gurley, 6 CI. & Fin. 741 ; Macq. Hus. ^ gee 2 Kent Com. 11th ed. 427,428, 

& Wife, 146. and notes ; Schoul. Hus. & Wife, § 427, 

3 2 Bl. Com. 515, 516 ; 2 Kent Com. and appendix, as to these changes in 
427 ; Cave v. Roberts, 8 Sim. 214. In different States. 

certain localities of England a different ^ Garthshorer. Clialie, 10 Ves. Jr. 1. 

rule prevails ; the local customs con- But see Wright v. Fearis, 3 Swanst 

tinuing in force. 2 Bl. Com. 518. 181. 

* Price V. Strange, 6 Madd. 161. « Hays v H. nry, 1 Md. Ch. 337. Ct 

278 



CHAP. XVI.] SURVIVING WIFE's RIGHTS. § 208 

§ 206. Widow's Waiver of Provision of Will. — The wife's 
privilege is carried even farther iii Massachusetts and various 
other States, by a statute which permits the widow to waive 
a provision made for her by her husband's will, and there- 
upon to take such portion as the law would have given her 
had he died intestate.^ But this privilege is accorded with 
some restrictions as to the full amoimt to be allowed her.^ 
The right on her part becomes complete upon her formal re- 
nunciation of the provisions under the will, without any sur- 
render of property under the will.^ But her election must 
be strictly made within the time designated by statute.^ And 
it is to be inferred that the right of election is personal to 
herself, and cannot be exercised by her representatives or 
kindred after her death. ^ 

§ 207. Widow's Allowance. — Another liberal provision 
made by the legislatures of some American States is that 
known as the widow's allowance. This is a reasonable sum, 
such as the Coui-t of Probate may order, as necessaries to the 
widow for herself and the family, or, if there be no widow, to 
the minor children. The allowance is set apart as something 
superior to the claims of general creditors, and is even pre- 
ferred to the expenses of administration, funeral and last ill- 
ness of the husband. The amount is at the discretion of the 
court; and where the husband has died insolvent, leaving 
few assets, it is not uncommon for the whole of the personal 
property to be thus awarded to the widow, wherebj^ is afforded 
an expeditious means of settling perplexing little estates.^ 

§ 208. Widow's Paraphernalia. — The widow's paraphernalia 

Padfield v. Padfield, 78 111. 16. And see 2 Crozier's Appeal, 90 Penn. St. 

Schoul. Hus. & Wife, § 428. 384 ; Register v. Hensley, 70 Mo. 189; 

1 Mass. Stats. 1861, c. 164; Firth v. In re Wilber, 52 Wis. 295. 
Denny, 2 Allen, 468 ; Towle v. Swasey, 3 Register v. Hensley, 70 Mo. 189. 
106 Mass. 100. Similar statutes are in * Waterburyi'. Netlierland, 6 Heisk. 
force in other States. White v. Dance, 512. Here she had relied on the legal 
53 111. 413 ; Stockton v. Wooley, 20 advice of the executor. 
Ohio St. 184; Arrington v. Dortch, 77 5 go held in Crozier's Appeal, 90 
N. C. 867; Cummings v. Cummings, Penn. St. 384. Otherwise in Indiana. 
51 Mo. 261. In some States the hus- Bratney v. Curry, 33 Ind. 339. In Mas- 
band now has a corresponding right of sachusetts the right is treated as per- 
waiver under his wife's will. Schoul. sonal to the widow. 
Hus. & Wife, § 206. 6 Schoul. Hus. & Wife, § 430. 

279 



§ 208 THE DOMESTIC RELATIONS. [PAET 11. 

is a species of property recognized at the common law, though 
borrowed from the civihans. It consists of such articles of 
wearing apparel, personal ornament, and personal conveni- 
ence as are suitable to a wife's rank and degree, and such as 
she conthiued to use during the marriage.^ The term imra- 
phernalia is derived from the Greeks, and transmitted to Eng- 
land through the civil law. But while the wiie^s paraphernalia 
at the civil law resembled what we call the wife's separate 
propert}^ the word itself has a more limited signification in 
England and America, being confined to personal necessaries 
or ornaments, and having no possible application to real 
estate.^ The common-law doctrine of paraphernalia is this : 
that the suitable ornaments and wearing apparel of a married 
woman, which she had at the time of her marriage, or which 
come to her through her husband before or during coverture, 
remain his personal property during his life, and he may sell 
and dispose of them during his life ; but such as remain at the 
time of his cleatli belong thenceforth to her absolutely as her 
paraphernalia.^ It seems that he may even give them away 
while coverture lasts, in the exercise of his marital rights. 
For the loss thereof the wife cannot sue alone, but the hus- 
band sues as for his own property.* But he certainly cannot 
bequeath them to his wife ; nor on principle dispose of them 
as donatio causa mortis.^ 

Paraphernalia are therefore to be distinguished from the 
wife's separate property, which we have considered, inasmuch 
as her rights are perfected only when she becomes a widow ; 

1 2 Bl. Com. 436; Macq. Hus. & nalia " appears to be used as synon- 

Wife, 147. ymous with " separate estate," orna- 

^ Blackstone says the word signi- ments, &c. 

lied " something over and above lier ■* Tipping v. Tipping, 1 V. Wins, 

dower;" whereas, as a late English 730; 1 Rolle, 911, L. 35; Com. Dig. 

writer observes, it really meant some- Baron & Feme, Paraphernalia ; Macq. 

thing of her own, not surrendered by IIu.s. & Wife, 147, 148 ; State v. Hays, 

lier at ber marriage; something re- 21 Ind. 288. See Rawson t'. Pennsyl- 

served and kept back from the dos, vania R. R. Co., 48 N. Y. 212. 

or fortune, which she brought her * Hawkins v. Providence R., 119 

husband. Macq. Hus. & Wife, 152. Mass. 596; McCormick v. Penn. Cen- 

" Dowry " may have been the word in- tral R., 49 N. Y. 803. 

tended by Blackstone. See Sclioul. Hus- ^ 2 Bl. Com. 436 ; Noye's Max. Ch. 

& Wife. §§342, 343, 431. In /?eHarrall, 49. 
31 2s. J. Eq. 101, the word "parapher- 

280 



CHAP. XVI.] SURVIVING WIFE's RIGHTS. 



§ 208 



while the property is alienable, not by herself, but by her 
husband, daring his life.^ Such gifts from the husband are 
further to be distinguished from gifts bestowed solely upon 
the wife by her father, or by a relative, or even by a stranger. 
For ill the latter instance they would be deemed gifts to her 
separate use ; and then, if received with the husband's con- 
sent, neither he nor his creditors could afterwards dispose of 
them. 2 

Paraphernalia would seem to be so far personal to the widow, 
that, if not claimed by her during her lifetime, they cannot 
after her death be demanded by her executor or administrator. 
Accordingly, it is held that if the husband should bequeath 
them to her for life, and then over, and she should make no 
election to have them as her paraphernal goods, her represen- 



1 Cro. Car. 844 ; Cora. Dig. Baron & 
Feme, Paraphernalia. Tlie jiarapher- 
nalia differ also from the wife's pin- 
money. Supra, § 160. Married wo- 
men's acts may, of course, render the 
wife's clothing, jewelry, &c., absolutely 
her own. See supra, c. 10. 

2 2 Story Eq. Juris. 555. Mere 
ornaments for a parlor are not to be 
treated as paraphernal property. Gra- 
ham V. Londonderry, 3 Atk. 393. Nor 
can articles he claimed as such which 
are, in fact, heirlooms. Calmady /'. 
Calmady, 11 Vin. Abr. 181, 182. But 
a gold wiitch worn by the wife of one 
who maintains a fair social position 
may be treateil as paraphernal. Tllex- 
an V. Wilson, 43 Me. 186. A "neces- 
sary bed " is paraphernal. See Com. 
Dig Baron & Feme, Paraphernalia. 
Jewels purchased by the husband, and 
worn by the wife with her other orna- 
ments, it is said, become her paruplier- 
nalia, in absence of evidence to the con- 
trary ; while family jewels, by merely 
being worn by the wife, do not. Jer- 
voise V. Jervoise, 17 Beav. 506 Where 
a piece of jewelry, in possession of the 
husband at the time of marriage as an 
heirloom, is greatly enhanced m value 

•by adding new diamonds, and is then 
given to the wife to wear, though be- 
queatlied to his heirs, the rule, as laid 



down by Lord Chancellor Macclesfield, 
is to separate the new diamonds after 
the husband's death, and bestow them 
upon the widow as her parapliernalia, 
leaving the heirs to enjoy the residue. 
Calmady v. Calmady, 11 Vin. Abr. 181, 
182. And the old books say that if 
the husband delivers cloth to his wife 
for her apparel, and dies before it is 
made up, she shall have the cloth. 1 
Rolle, 911, L. 35; Com. Dig. Baron & 
Feme, Paraphernalia. The question of 
value is not material in setting off the 
widow's jiarajiliernalin, so long as the 
articles are suitable to her degree. 76.: 
Macq. II us. & Wife, 148. And while 
the modern cases which turn on such 
questions are rare, especially in this 
country, it cannot be doubted that a 
liberal rule would at this day be ap- 
lied in the widow's favor. 

As to personal ornaments, it seems 
to be an important element in the title, 
tiiat tlie wife should be seen to wear 
them at intervals. Particularly is this 
true where the husband kept them in 
his own possession, for otherwise it 
might be said that he never gave them 
to her. But it is enough to establish 
her claim that he had allowed her to 
wear them on birthdays or other suit- 
able occasions. Graham v. London- 
derry, 3 Atk. 393. 

281 



§ 208 THE DOMESTIC RELATIONS. [PART II. 

tative after her decease would be excluded.^ But in a recent 
English case, not only was the committee of the widow, being 
a lunatic, permitted to elect in her stead while she remained 
alive ; but upon her subsequent death, her next of kin were 
allowed to come in and choose whether to take the imrapher- 
nalia or the benefits given her under her husband's will ; and, 
upon their choice of the former, an order in chancery was 
made accordingly .^ 

The wife's paraphernal property is subject to her husband's 
debts during his life ; for in truth it is not then her property 
at all.^ Nor can she maintain an indictment against any one 
who steals it, while her husband is alive.'^ So, too, it is liable 
for his debts after his death, when there is a deficiency of 
assets in the administrator's hands.^ But even then her 
necessary clothing is protected ; for in the words of an an- 
cient judicial resolution, " She ought not to be naked or ex- 
posed to shame and cold." ^ And in many of the United 
States- there are at the present day statutes which justly 
reserve to the widow, in any event, necessaries in the house 
at the time of her husband's death, and the ornaments and 
clothing of herself and children^ If a husband pawn his 
wife's parapherna/ia as collateral security for money borrowed, 
and give power to tlie lender to sell for a sum certain during 
his absence, this will not be deemed an absolute alienation 
but shall stand as a pledge redeemable by the widow ; and if 
the husband have left sufficient to redeem (after payment of 
all his debts), she is entitled, under the rules of equity, to 
have the redemption money raised out ot" his personal estate.^ 

1 Macq. ilus. & Wife, 150 , Clarges ^ See Mass. Gen. Stats, c. 96. §§ 4, 5 ; 

?;. Albemarle, 2 Vern. 246; Com. Dig. Ginocliio y Porcella, .3 BraJt Sur. 277. 

Baron & Feme, Paraphernalia. ** Graham ?;. Londonderry, 3 Atk. 

'^ hi re Hewson, 23 E. L. & Eq. 283 393 In A'e liarrall, 31 N J. Eq 101, 

* Tllexan v. Wilson, 43 Me. 186 , 1 this same rule is applied in equity to 

Bright Hus. & Wife, 288. the guardian ot a lunatic husband, who 

•» State c. Hays, 21 Ind. 288 pawned the wife's jewels, while sane, to 

5 2 Bl Com. 436 ; Macq. Hus. & pay his personal expenses, the lunatic's 

Wife, 147, 149, Snelson v. Corbet, 3 estate being ample Here the lunatic 

Atk. 869 ; Howard o. iVIenifee, 5 Pike, was still alive, which makes the case 

668 ; Ridout v. Earl ot Plymouth, 2 somewhat anomalous ; tliough, Semite, 

Atk. 104. a wile's ornaments were here treated- 

^ 1 Rolle, 911, L. 35, cited in Macq. as her separate property. 
Hus. & Wife, 147. 

282 



CHAP. XVI.] SUHVIVING WIFE's EIGHTS. § 210 

But creditors must first be satisfied in all cases ; though the 
widow's right in respect to such property is superior to that 
of any legatee of the husband.^ 

§ 209. Equity of Redemption and Exoneration in Mortgages. 
— We have already observed that a wife may join with her 
husband in executing a mortgage of her general real estate as 
security for his debts, and that, if this mortgage be properly 
foreclosed, and equities of redemption barred, her right to the 
real estate is gone.^ We have also seen that the wife's sep- 
arate real estate may be thus encumbered.^ Yet the courts 
have gone as far as they consistently could in upholding the 
wife's title under such circumstances, and in allowing her all 
the privileges of a surety.^ In the first place, they favor her 
right to the equity of redemption as against her husband ; in 
the second place, they allow exoneration or reimbursement 
from her husband's estate, after his death, where the assets 
prove sufficient for that purpose.^ 

To the wife also belongs the right in equity to have her 
estate exonerated out of her husband's personal and real 
assets. This is known as the wife's equity of exoneration.^ 

§ 210. Controversies between Administrator and Widow. — 
Controversies between a widow and her husband's adminis- 
trator are not un frequent; and it is manifest that at the 
common law the widow's situation with reference to personal 
property, which she had brought with her into the marriage 

1 76. ,• Tipping v. Tipping, IP. Wms. ^ Supra, §§ 1.37, 152, and cases 
729 ; Ridout v. Earl of Plymoutli, 2 Atk. cited. 

104 ; Burton v. Pierpont, 2 P. Wms. 80. * As to these privileges, see supra, 

And even tiiough contingent assets §§ 137, 152. 

come to hand afterwards, the wife's 5 See Ruscombe v. Hare, 6 Dow, 1 ; 

claim is gone. lb. Jackson v. Innes, 1 Bli. 115. And see 

Letters written to a wife by a former Schoul. Hus. & Wife, § 4.34. 
husband belong to her and not to his 6 2 Saund. 177; 1 Mod. 290; Robin- 
estate ; and her own gift of them is son v. Gee, 1 Ves. Sen. 252, per Lord 
valid as against the executor of such Hardwicke. See Schoul. Hus. & Wife, 
estate or her second husband. Grigsby §§274,435. The principle is that the 
V. Breckenridge, 2 Bush, 480. See, wife, when mortgaging her property 
further, Schoul. Hus. & Wife, § 4.32, for her husband's debt, stands in the 
as to appropriating real estate to pay position of a surety, and therefore 
debts, before the paraphernalia can be may claim indemnity from the princi- 
taken. p;il for whose benefit her security was 

2 See supra, § 94, and cases cited. interposed. 

283 



§ 211 THE DOMESTIC RELATIONS. [PART U. 

state, was often extremely hard. But equity protects restric- 
tion imposed on trust funds for her 1)enefit, even as against 
her own indiscreet conduct.^ Nor are instances wanting 
where a widow's hasty, inconsiderate, and foolish acts with 
reference to property rights acquired by her in her deceased 
husband's estate have been deemed inoperative ; her distrib- 
utive share and allowances being preserved for her by the 
courts as against herself, so to speak.^ 

A widow must not intermeddle with her late husband's 
estate, nor assume duties which properly devolve upon the ex- 
ecutor or administrator.^ And, when administratrix herself of 
her husband's estate, she is expected to enjoy the usual rights 
and assume the usual responsibilities pertaining to the office.* 

§ 211. Widow's Obligation to bury Husband. — The com- 
mon-law obligation of the widow to bury her deceased hus- 
band rests upon weaker foundations than the corresponding 
obligation of the husband. In truth it seems somewhat in- 
consistent with the doctrine of coverture ; for why, it may be 
asked, should a woman answer for the indigence of one whose 
lawful privilege it was to strip her of her own means of sup- 
port ? Where the husband leaves an estate, the funeral expen- 
ses are to be paid by his executor or administrator, and not 
by his widow. This is the rule both in England and America ; 
and it is doubtless reasonable so far as it goes.* If the husband's 
estate is sufficient, it ought to bear the expense of his burial. 

1 See e. g. Dunn v. Lancaster, 4 stand upon a like footing as regarded 
Bush, 581 ; Re Peacock's Trusts, L. R. tlie obligation of burying one another. 
10 Ch. D. 490; Schoul. Hus. & Wife, Here a widow, who was also an infant, 
§§ 308, 437. was held bound by her contract for the 

2 See Maull v. Vaughn, 45 Ala. 134 ; expense of her husband's interment. 
Cammack v. Lewis, 15 Wall. 643. The decision proceeded upon the in- 

3 Keating ". Condon, 68 Penn. St. 75; genious doctrine, that, since a husband 
Leacli V. Prebster, 35 Ind. 415. ought to bury his wife and lawful 

* See Ready v. Hanim, 46 Miss. 422 ; children, who are the personcE conjuntUe 
Fox V. Doherty, 30 Iowa, 334; Mose- with him, as a matter of personal ben- 
ley V. Rendell, L. R. 6 Q. B. 3.3&. efit to himself, the wife should do the 

^ 2 Redf Wills, 224 ; 2 Wms. Ex'rs, same by her husband, as a benefit and 

871 ; Macq. Hus. & Wife, 183. But in comfort to herself ; and therefore that 

an English case, decided not many years the case conies within the rule of law 

ago, the court seemed to regard this which makes a contract good where the 

subject somewhat differently, and in- infant is a gainer by it. Chappie v. 

timated that husband and wife should Cooper, 13 M. & W. 252. 

284 



CHAP. XVI.] SURVIVING WIFE's EIGHTS. 



§212 



§ 212. Effect of Husband's Death upon Wife's Contracts. — 
Where a married woman contracts with authority from her 
husband, and the husband dies suddenly, and in point of fact 
before certain purchases were made on his credit, is his estate 
liable, or is his widow ; or must the creditor bear the loss ? 
The general rule undoubtedly is that the authority of an 
attorney or agent expires with the principal. A dead man 
can have no one acting by his name and authority. And since 
the wife contracts only as her husband's agent at the common 
law, her case would seem to fall within the general doctrine.^ 

The modern inclination is clearly to relax somewhat the 
rigid rule of the common law of agency, and to favor the 
Roman doctrine, which binds the principal or his estate in 
respect to acts clone in good faith by his agent before notice 
of revocation.^ 



1 Such in fact was the ruling of the 
court in Blades v. Free, where a man 
who had some years cohabited with a 
woman, who passed as his wife, left 
lier and iier family in England, and 
went into foreign parts, where he died. 
Here it was held that the executor was 
not bound to pay for necessaries sup- 
plied to her after his death, although 
before information of the event had 
reached her. In this case, however, 
there was only a quasi widow, and 
perhaps the court felt the stigma of an 
illicit cohabitation. 9 B. & Cr. 167 ; 4 
Man. & Hy. 282. But the precedent 
proved a stumbling-block in the next 
case of Smout v. Ilberry, 10 M. & W. 
1. A man who had been in the habit 
of dealing with a butcher for meat 
supplied to his house went abroad, 
and his wife, who remained at home, 
continued the employment of the 
butcher. Here it was held that she 
was not personally liable for meat sup- 
plied after her husband's death, and 
purchased by her in good faith, sup- 
posing him to be still alive. The prin- 
ciple of the latter case seems to have 
been tliat, although the authority had 
expired, yet the agent was not in 
fault, nor in the commission of any 



fraud ; that the revocation occurred by 
act of God. But the loss had to fall 
somewhere ; so the court put it upon 
the butcher. These seem to be the 
only cases of importance on this sub- 
ject m England ; and we find none in 
this country to shed further light. 

2 Story Agency, §§ 488, 497, and 
notes, in 9tli edition. See Bradford, 
surrogate of New York city, in Gino- 
chio V. Porcella, 3 Bradf. Sur. 277, in 
which this subject is ably discussed, 
though the case in question, upon a 
close examination, appears to have 
decided little or nothing. This able 
lawyer evidently leans against the 
authority of Blades v. Free, though he 
expresses himself very guardedly. See, 
to the same purport, Terry's Appeal, 
55 Penn. St. 344, where the wife had 
been deserted by her husband ; also 
Schoul. Hus. & Wife, § 438. And see 
Stinson v. Prescott, 15 Gray, 335 ; Ster- 
ling V. Potts, 2 South, 773 ; Smith v. 
Allen, 1 Lans. 101 ; Carter v. AVann, 
45 Ala. 343. 

As to rights of the widow affecting 
settlement of her husband's estate, see, 
further, Schoul. Hus. & Wife, § 440- 
442. 

285 



§ 213 THE DOMESTIC RELATIONS. [PART U. 

§ 213. The Widow's Dower. — Dower and curtesy had not, 
perhaps, the same origin : they certainly had not, in all 
respects, the same incidents : but both rights were known in 
England from a very early period, and both have remained 
with very little change down to a recent date in England 
and America. Dower gave the widow only a life interest to 
the extent of one third, while curtesy gave the surviving hus- 
band the full life interest. But on the other hand, dower 
became absolute in the widow when she outlived her hus- 
band, while curtesy, as we have seen, never attached at all 
unless the husband outlived his wife and was fortunate 
enough to have had a child by her besides. So that in these 
respects the rights of husband and wife, on the whole, if not 
equivalent, were nearly so. And as the reader may have 
already inferred, the general rule as to descent of real estate 
has been that, subject to the widow's dower, the lands of a 
husband descend to his own heirs; while, subject to the sur- 
viving husband's curtesy, the lands of a wife descend to her 
own heirs ; our policy being to preserve real estate in the 
family, so to speak, of the respective parties to a marriage, in 
default of issue capable of inheriting from both.^ 

Dower is to be defined as that provision which the law 
makes for a widow out of the lands or tenements of her hus- 
band. In its technical sense the word relates to real estate 
only. It is said to be given for her support and the nurture 
of her children ; but it applies, in fact, whenever she is the 
survivor, without reference to her actual circumstances as to 
means of support or the burden of a family. Dower extends 
to all estates of inheritance which the husband has held at 
any period of the coverture in his own right, and which any 
issue of hers might, if born, possibly inherit.^ 

The three essentials of dower nearly correspond with those 
of curtesy ; birth of issue, as we have said, not being requi- 
site. They are marriage, seisin of the husband, and his 



1 See 1 Washb. Real Prop. 127, 2 Co. Litt. 30a; 2 Bl. Com. 130; 1 
147 ; Jenks v. Langdon, 21 Ohio St. Washb. Real Prop. 146. 
362. 

286 



CHAr. XVI ] SURVIVING WIFE's EIGHTS. 



§^14 



death. But a careful comparison of the two estates at the 
old law shows some inequalities.^ 

§ 214. Homestead Rights. — The homestead may properly 
be considered in connection with dower ; for although this 
right is not strictly personal to married women, inasmuch as 
it exists for the benefit of both wife and children, if not for 
the husband besides, while he lives, it is an incumbrance 
upon the real estate of the husband which is generally re- 
leased by the wife in connection with her dower. The home- 
stead system is of recent origin, is peculiar to our American 
States, and exists for protection mainly against the husband's 
creditors. The policy on which it rests — by no means a new 
one in our legislation — is that a householder with a family 
shall always have a place of shelter where legal process can- 
not reach him. While open to some serious objections as 
concerns the rights of creditors, the homestead system is to be 
warmly commended in respect of the encouragement it affords 
to agriculture, and still more as offering rewards for domestic 
fidelity.2 



' As to dower, see, in general, 1 
Wiislib. Real Prop, 154 et seq. ; Schoul. 
Hus. & Wife, §§ 445-455. 

Wliile the law of dower has been 
gradually fading out of sight in Eng- 
land, since the English Dower Act, 3 
& 4 Will. IV. c. 105, limiting the inter- 
est, it attains its fuller development in 
this country. Curiously enough, most 
of the modern cases on this subject are 
American. Our local statutes have 
very generally favored the widow's 
rights, and unless she has joined her 
husband in liis conveyances during his 
life, or statutes restrain her rights, she 
may usually assert the privilege at his 
dcatli. But dower is found a great 
inconvenience in an age when real 
estate passes from hand to hand as an 
article of commercial traffic ; and legis- 
latures show some disposition to get 
rid of it entirely, together with cur- 
tesy. In New York the widow can 
only claim her dower out of lands of 



whicli her husband died seised ; and 
such is the rule of various other States 
as to equitable estates at least, like an 
equity of redemption. In several States 
her interest is treated as something for 
the benefit of herself and children 
jointly. In others, the " thirds " are 
dispensed with, and a different rate is 
fixed. And finally, the State of Indi- 
ana has set a good example, which 
otlier States have followed, of abolish- 
ing both curtesj- and dower, and substi- 
tuting, in behalf of husband and wife, 
an interest in fee in one another's real 
estate, remaining at decease, on princi- 
ples analogous to the descent and 
distribution of personal property of 
intestates ; thus placing both sexes on 
the mutual footing of justice, and treat- 
ing lands and personal estate as sub- 
ject to corresponding rules. Schoul. 
Hus. & Wife, § 455, and appendix. 

2 See 1 Washb. Real Prop. 4th ed. 
342 et seq., where this system is detailed. 

287 



§ 215 THE DOMESTIC RELATIONS. [PART U. 



CHAPTER XVII. 

SEPARATION AND DIVORCE. 

§ 215. Deed of Separation ; General Doctrine. — Separation is 
that anomalous condition of a married pair which involves a 
cessation of domestic intercourse, while the impediments of 
marriage continue. Either from choice or necessity, as the 
case may be, they throw aside the strong safeguards of a home 
and mutual companionship ; they forfeit their most solemn 
obligations to protect, love, and cherish througli life ; they 
continue united in form and divided in fact. The spirit of 
the contract, all that dignities and ennobles it, is gone ; but 
the letter remains. Both parties submit, in some degree, at 
least, to the degradation of public scandal ; they are cast 
loose upon the world without the right to love and be loved 
again ; the thought of kindling fresh flames at the altar of 
domestic happiness is criminal ; and deprived of the comfort 
and support of one another, finding in society at best but 
timid sympathy and consolation, the moral character must 
be strong, and doubly so must be that of the wife, that each 
may buffet with success the tide which bears onward to de- 
struction. Such a state of things no public policy can safely 
favor ; but the law sometimes permits it, if for no other 
reason than that an adequate remedy is wanting to check or 
to prevent the evil ; and hence it may be thought more expe- 
dient for the courts to enforce such mutual contiacts of the 
unhappy pair as mitigate their troubles, than to dabble in a 
domestic quarrel and try to compel unwilling companion- 
ships. 

Tins we conceive to be the rightful position of the English 
and American equity courts whenever they see fit to enforce 
separation agreements. Some, to be sure, are disposed to 
288 



CHAP. XVII.] SEPARATION AND DIVORCE. § 216 

carry the argument further. Thus, recent English writers 
of much repute refer to the fact that divorces from bed and 
board are often granted in that countr}^ and hence conclude 
that it is reasonable for the married parties themselves to 
compromise litigation, save court fees, and avoid public noto- 
riety, and therefore to agree to live apart, just as though 
the court had entered a decree for that purpose.^ But this 
argument proves too much ; for if marriage and divorce are 
matters for private compromise, like ordinary contracts, why 
should not the discontented pair, upon just cause, agree to 
unloose the yoke altogether? Why should they not some- 
times obtain divorce from the bonds of matrimony by collusion 
and default, and thus take the readiest means of avoiding 
scandalous and expensive suits ? One shrinks from such 
conclusions. In fact, divorce laws do not belong to the par- 
ties themselves, but to the public ; government guards the 
sanctity of marriage, just as it demands the duty of alle- 
giance ; only that perhaps its policy cannot be enforced in 
the one case as well as the other. It is because marriage is 
not on the footing of ordinary contracts, that husband and 
wife cannot, on principle, compromise, arbitrate, or modify 
their relationship at pleasure. Furthermore, the above argu- 
ment would seem to suggest that where a complete divorce, 
instead of divorce from bed and board, is attainable, deeds of 
separation would not hold good ; nor, again, where parties 
separate for causes which do not even justify divorce from 
bed and board ; neither of which positions is sustained by 
the actual decisions. 

§ 216, The Same Subject; English Rule. — Lord Eldon was of 
the opinion that a settlement by way of separate mainte- 
nance, on a voluntary separation of husband and wife, was 
against the policy of the law and void. The ground of his 
opinion was that such settlements, creating a separate main- 
tenance b}' voluntary agreement between husband and wife, 
were in their consequences destructive to the indissoluble 
nature and the sanctity of the marriage contract ; and he 

1 Macq. Hus. & Wife, 324 et scq. See also Jacob n. to Roper Hus. & Wife, 
277; Peiicliey Mar. Settl. 647. 

19 289 



§ 216 THE DOMESTIC RELATIONS. [PAPwT II. 

considered the question to be the gravest and most momen- 
tous to the public interest that could fall under discussion in 
a court of justice.^ But in England final and complete dis- 
solution of marriage was, until quite recentl}', attainable only 
by act of Parliament. And this method of procedure was 
found so difficult, expensive, and uncertain, that parties who 
could not live peaceably together were led to consider some 
lesser means of mitigating their misfortune. To be sure 
the ecclesiastical courts awarded sentences of divorce from 
bed and board ; but these merely discharged the parties from 
the duty of cohabitation, permitting them to come together 
afterwards if they should so choose ; and therefore, as a 
writer observes, these sentences " did not often, it must be 
owned, repay the pains bestowed in obtaining them."^ The 
English ecclesiastical courts steadily refused, moreover, to 
recognize separation deeds.^ Such a policy seems, however, 
to have turned husband and wife to their own devices for 
effecting the same result, with less dela)" and annoyance, and 
in order to adjust more completely those property arrange- 
ments which never could be forgotten in their misery. Deeds 
of settlement, trusts, and the intervention of the equity 
courts, readily furnished a plan of operations ; and the ubi- 
quitous conveyancer appeared once more upon the stage to 
open the way, through subtle refinements, to freedom for 
discontented couples, and emolument for himself. 

After a prolonged struggle, and in spite of public policy, it 
is therefore fully established at length in England, as a doc- 
trine of equity, that deeds of separation may and must, if 
properly framed, be carried into execution by the courts.* 
They may be enforced in the common-law courts indirectly 
through the medium of covenants which are entered into 

1 St. John I'. St. John, U Ves. 530. 620; II. v. W., 3 Kay & Johns, 386, 
See Mortimer v. Mortimer, 2 Hag. 387. 

Consist. Rep. 318; Legard v. Johnson, 3 1 Bish. Mar. & Div. 5th ed. § 634; 

3 Ves. 352 ; Mercein v. People, 25 Mortimer ?;. Mortimer, 2 Hag. Con. 310 ; 

Wend. 77. Smith v. Smith, 4 Hag. Ec. (iOO. 

2 Macq. Hus. & Wife, 326. See * Wilson v. Wilson, 1 Ho. Lords. 
Hope V. Hope, 3 Jur. n. s. 456 ; s. c. 26 Cas. 538 ; 5 Ho. Lords Cas. 59 ; Peachey 
L. J. Eq. 425; Peachey Mar. Settl. Mar. Settl. 620, and cases cited; Macq. 

Hus. & Wife, 329. 

290 



CHAP. XVII.] SEPARATION AND DIVORCE. § 217 

between the husband and trustees ; and in equity specific 
performance will be decreed where the stipulations are not 
contrary to law nor in contravention of public policy .^ An 
agreement between husband and wife to live apart is, per- 
haps, void as against public policy ; but the husband's cove- 
nant with a third party may be valid and binding, although 
it originates in this unauthorized state of separation and re- 
lates directly to it.^ 

It may seem strange that such an auxiliary agreement 
should be enforced, while the principal agreement is held 
contrary to the spirit and policy of the law. Lord Eldon, 
who strongly opposed the whole doctrine on principle, said 
that if the question were res Integra, untouched by dictum or 
decision, he would not have permitted such a covenant to 
be the foundation of a suit in equity.^ Sir William Grant 
appears to have been the first to call attention to the incon- 
sistency of the courts in this respect; and his remark has 
come down through the later judges.* Lord Rosslyn, how- 
ever, hit upon the explanation that an agreement for a sepa- 
rate provision between the husband and wife alone is void, 
merely from the general incapacity of the wife to contract ; ^ 
an explanation which, we submit, is quite unsatisfactory. 
The true reason for the anomalous distinction appears to Tdc 
simply this : that contracts for separation are in general void 
as against public policy, but that the courts saw fit to let in 
exceptions so far as to enforce fair covenants. 

§ 217. The Same Subject ; American Rule. — Deeds of sepa- 
ration were never very common in the United States. And 
there are at least three very good reasons why they should 
be at this day less encouraged than in England. The first is 
that our legislation strongly favors the separate control of 
married women as to their own acquisitions, without the 

1 Vansittart v. Vansittart, 2 De Gex ^ Westmeath v. Westmeatli, Jac. 
& Jones, 249. 12G ; 2 Kent Com. 176. 

2 Worrall v. Jacob, 3 Mer. 255 ; * See Jones v. Waite, 5 Bing. 361 ; 
Peachey Mar. Settl. 621 ; Sanders v. Frampton v. Frampton, 4 Beav. 293. 
Rodney, 16 Beav. 211 ; Warrender v. ^ Legard v. Johnson, 3 Ves. Jr. 852. 
Warrender, 2 CI. & Fin. 488. See 2 Bright Hus. & Wife, 306, n. by 

Jacob. 

291 



§ 217 THE DOMESTIC RELATIONS. [PAET II. 

intervention of trustees and formal deeds of settlement, thus 
dispensing with the necessity of intricate property arrange- 
ments. The second is that equity, ecclesiastical, and com- 
mon-law functions are usually blended in the same courts 
of final ajjpeal, so that a State is at liberty to adopt the pre- 
cedents of the ecclesiastical rather than the modern equity 
tribunals of England for its guidance ; while an American 
court, — on the other hand, could not admit clearly the riglit of 
parties to declare terms of private separation, without bring- 
ing confusion and uncertainty upon its own divorce and 
matrimonial jurisdiction. The third is that sentences of di- 
vorce have been procured in most of the United States with 
great ease, moderate expense, and little publicity. 

Early in this century. Chancellor Kent summed up authori- 
ties which showed that a private separation was an illegal con- 
tract, in these emphatic words : " Nothing can be clearer 
or more sound than this conjugal doctrine." ^ Contrary to 
what until quite lately was the rule in England, many of our 
States have never directly sanctioned separation deeds at all. 
And a recent North Carolina case distinctly maintains what 
ought to and may yet become the pronounced American doc- 
trine, — that separation deeds are void as against law and 
public policy.^ 

Nevertheless there are individual American cases, and nu- 
merous ones, where separation deeds have been recognized so 
far as to permit, and sometimes to require, parties to perform 
such marital duties as were incumbent upon them, notwith- 
standing the fact of separation.^ And the text-writer must 
still further concede, however reluctantly, that out of a 
regard for permitting married parties, who are resolved upon 
separation without a divorce, to arrange decently for the main- 

1 2 Kent Com. 177 n. Tex. 570; Ilitner's Appeal, 54 Penn. 

2 Collins V. Collins, 1 Pliill. N. C. St. 110; Loud v. Loud, 4 Busli, 453; 
Eq. 153. Dutton v. Dutton, 30 Ind. 452 ; McKee 

3 1 Bish. Mar. & Div. § 639 el srq. ; v. Reynolds, 20 Iowa, 578; Walker v. 
Schoul. Hus. & Wile, § 473; Goodrich Beal, 3 Cliff. 155; Dupre v. Eein, 56 
V. Bryant, 4 Sneed, 325; McCubbin v. How. (N. Y.) Prac.228; Demingf. Wil- 
Patterson, 16 Md. 179 ; Griffin v. Banks, liams, 26 Conn 226 ; Cliapman v. Gray, 
37 N. Y. 621 ; Joyce v. McAvoy, 31 8 Ga. 341. 

Cal. 273; Walker i-. Stringfellow, 30 

292 



CHAP. XVII.] SEPAEATION AND DIVORCE. § 218 

tenance of wife and offspring, and for a just mutual disposi- 
tion of property rights, our courts are in the latest cases fol- 
lowing the English lead so as to sustain the enforcement of 
whatever covenants might be pronounced fair in themselves 
on behalf of parties separated or about to separate. Some of 
these cases sustain such covenants upon a suggestion that, 
separation being inevitable, tliey are prepared to make the 
best of it, not conceding the support of contracts calculated to 
favor a separation which has not yet taken place or been full}' 
decided upon.^ An unsatisfactory distinction truly, nor one 
likely to afford a resting-place ; as though this half counten- 
ance were not calculated of itself to favor future separation ; 
and yet a legal distinction. It seems to stop short of enforc- 
ing specific performance of a written agreement for a separa- 
tion deed, and to refuse direct countenance to a stipulation 
that husband and wife shall live apart in time to come. 

§ 218. The Same Subject; ^w•hat Covenants are upheld. An 
indenture with tlie intervention of a trustee or trustees is in 
this country held the safer sort of instrument where separa- 
tion is contemplated, and such are the deeds usually drawn 
and construed by our courts. It is desirable that the hus- 
band and trustee mutually covenant together. But so con- 
siderably are husband and wife now emancipated from the 
need of intermediate parties, that a fair transaction of the 
present nature has been sometimes sustained in certain States, 
where no trustee at all was interposed.^ This cannot be 
affirmed of all, nor of most of the United States ; ^ nor can 
such a contract ever prevail against the wife's interests where 
she, in such negotiation and arrangements, does not appear 
to have acted with perfect freedom and a perfect understand- 
ing of her individual rights.^ Sometimes an agreement or 

1 Fox V. Davis, 113 Mass. 255, per wife, whose actual consideration was 
Endicott, J., and cases cited ; Button v. relinquisiiment of the right to support 
Hutton, 3 Barr, 100; Randall v. Ran- on her part. 

dall, 37 Mich. 5Go, per Cooley, C. J. ; ^ Simpson v. Simpson, 4 Dana, 140 ; 

Garver y. Miller, 16 Oliio St. 527 ; Rob- Carter v. Carter, 14 Sm. & M. 59; 

ertson v. Robertson, 25 Iowa, 350 ; Dut- Stephenson v. Osborne, 41 Miss. 119 ; 

ton V. Dutton, 30 Ind. 452. McKennan v. Phillips, 6 Whart. 571. 

2 In Randall v. Randall, 37 Mich. * Switzer v. Switzer, 26 Gratt. 574. 
663, a deed passed from husband to 

293 



§ 218 THE DOMESTIC RELATIONS. [PART II. 

bond to separate is executed by husband and wife, accom- 
panied by the conveyance of property to a trustee for the use 
of the wife ; which hitter, however, is the instrument tlie 
court construes and uj^holds.^ 

Inasmuch, then, as separation deeds are not enforced either 
in England or the United States, at the present day, without 
regard to the poHcy of stipulations or covenants in question, 
the limit of judicial support may be drawn at the support of 
provisions which, supposing separation inevitable, carry the 
fulfilment of conjugal duties and rights after a reasonable and 
becoming manner into that relation. For equity can only 
sanction what is fair and beneficial ; and here cognizance is 
taken, not of the separation, but of circumstances and a set- 
tlement attending that state. The covenant or stipulation 
itself, the whole settlement, must be free from exception and 
such as equity might, under other instances of its jurisdiction, 
have sustained.^ Where, therefore, the provision is for the 
benefit of wife and children, as in providing suitable mainte- 
nance during the separation, such a covenant or stijDulation is 
to be highly favored.^ Where an equitable and suitable divi- 
sion is made of the property, whose benefits have been 
enjoyed during the coverture, this, too, may well be upheld.^ 
The spouse wlio covenants to deliver up certain property to 
the other should make that covenant as advantageous to the 
latter as Avas reasonably intended.^ It is fair that a hus- 
band's covenant or stipulation of proper allowance for the 
wife's support shotild be accompanied by the trustee's cove- 
nant or stipulation of indemnity against his wife's debts.^ In 
respect of directly compelling the married parties to live 



^ Keys i\ Keys, 11 Heisk. 425; separation deed, lias covenanted to de- 

Dixon V. Dixon, 23 X. J. Eq. 316. liver up. Hamilton v. Hector, L. R. 

- Switzer V. Switzer, 26 Gratt. 574. 1.3 Eq. 511. And see McAllister ;;. 

3 Fox V. Davis, 113 Mass. 2-55; McAllister, 10 Heisk. 345. 

Randall v. Randall, 37 Mich. 563; e Dnpre v. Rein, 56 How. (N. Y.) 

Walker r. Walker, 9 W.ill. 743. Prac. 228 ; Harsliberger v. Alger, 31 

* Cooley, C. J., in Randall v. Ran- Gratt. 52 ; Reed ik Beazley, 1 Blackf. 

dall, 37 Mich. -563. 97. Such a provision of indemnity, 

^ Thus, it is held that a husband has though usual, is not essential. Smith 

no right to retain copies of his wife's v. Knowles, 2 Grant, 413. 
journals and diaries which he, under a 

294 



CHAP. XVII.] SEPARATION AND DIVOECE. 



§218 



apart under their agreement, separation deeds cannot be 
pronounced good upon any just conception of public policy 
and the divorce laws ; ^ and especially must this rule hold true 
where the compusion sought is under circumstances of sepa- 
ration not justifying a divorce. 

The potential mingling of legal and illegal conditions in 
these agreements, with the view of entering upon a status 
which of itself is inconsistent with a due fulfilment of the 
moral and legal duties of matrimony, occasions judicial con- 
fusion, which is more likelj'" to increase than decrease while 
separation deeds are judicially recognized. But it is recently 
held in England that if some covenants in such a deed are 
legal and proper, while others are not, the former are enforce- 
able by themselves.2 



1 Warrender v. Warrender, 2 CI. & 
F. 488, 527, per Lord Brougham; 
Brown v. Peck, 1 Eden, 140 ; McCrock- 
lin V. McCrocklin, 2 B. Monr. 370; 
McKennan v. Phillips, 6 Whart. 571, 
per Gibson, C. J. 

Whether articles of separation can 
debar one from procuring a divorce 
for cause, see Schoul. Hus. & Wife, 
§§ 476, 482. If separation never took 
place, the deed is void. Hamilton v. 
Hector, L. R. 13 Eq. 511. As to recon- 
ciliation after separation, see Schoul. 
Hus. & Wife, § 478. 

2 Hamilton v. Hector, L. R. 13 Eq. 
511. 

While in many parts of the United 
States is seen an increasing tendency 
to adopt the English theory concerning 
separation covenants, with, however, 
more looseness as to tiie form such 
transactions shall take, tl e latest Eng- 
lish cases quite transcend the distinc- 
tions behind which our courts take 
refuge, and the earlier dicta of their 
own Eldon and Brougham. Divorce 
being there regarded with less favor 
than in the United States, notwith- 
standing the late statutes on tlie subject, 
trust deeds and voluntary separation 
are, upon mature experience, treated as, 
on the whole, the more decent and re- 
spectable method for unhappy couples 



to adopt, than that somewhat novel • 
recourse to courts, which brings a 
scandalous cause into public contro- 
versy. See Peachey Mar. Settl. 647, 
(548. English policy, indeed, in its 
inception is quite different from Amer- 
ican in this regard, a fact which 
American jurists should bear well in 
mind. And under legislation of date 
much later than the divorce acts which 
were copied from the United States, 
separation deeds are plainly legalized. 
Stat. 36 & 37 Vict., cited in Re Besant, 
L. R. 11 Cli. D. 508. Thus, the cus- 
tody of the offspring may now be dis- 
tinctly provided for, as it would appear, 
in an English deed of separation. But 
at the same time, chancery, where the 
child is made a ward of tlie court, will 
protect the child's welfare. lie Besant, 
L. R. 11 Ch. D. 508 ; Besant v. Wood, 
L. R. 12 Ch. D. 605. See, further, 
Schoul. Hus. & Wife, §§ 480-482. 

Upon still another point, namely, tlie 
restitution of conjugal rights, tlie Eng- 
lish chancery has, of late, departed 
widely from its earlier precedents. In 
Great Britain, where this suit for resti- 
tution of conjugal rights has always 
been permitted, it was formerly ruled 
in the matrimonial courts, and seemed 
to be the well-settled doctrine, that a 
deed of separation afforded no bar to 

295 



§219 



THE DOMESTIC RELATIONS. 



[part II. 



§ 219. Abandonment; Rights of Deserted "Wife. — Abandon- 
ment by either spouse consists iu leaving the other wilfully 
and with the intention of causing their perpetual separation. 
As to the right of the wife, when abandoned by her husband, 
to earn, contract, sue, and be sued, to much the same effect 
as a feme sole, while such abandonment actually lasts, the 
current of Araericau authority, legislative and judicial alike, 
decidedly favors so just a doctrine.^ Modern married 
women's acts often permit the wife to do quite or nearly as 
much when not abandoned at all. And in England, recent 
statutes secure to a married woman privileges to a similar 
extent under like circumstances of abandonment.^ The test is. 



such a suit whenever either party 
chose to enforce tlie remedy ; and this, 
even tliougli the deed in terms forbade 
such proceedings. 1 Bish. Mar. & Div. 
§ 634, and numerous cases cited. This 
was in accordance with the first idea 
tliat separation deeds miglit indirectly 
be tolerated for tiieir beneficial cove- 
nants as concerned parties bent upon 
separation, but not directly upheld. 
That rule has changed ; for, as the 
English statute now provides, a deed 
of separation which contains a cove- 
nant forbidding the suit for restitution 
of conjugal rights to be brought, will 
bar such a suit. Marshall v. Marshall, 
39 L. T. 640. And to one separated 
spouse chancery will now grant an in- 
junction, by virtue of such a covenant, 
to restrain the other spouse from suing 
for restitution of conjugal rights. Be- 
sant V. Wood, L. R. 12 Ch. D. 605, and 
cases cited. Under the English divorce 
act of 20 & 21 Vict. c. 85, suits for 
restitution of conjugal rights are still 
permitted. 1 Bish. Mar. & Div. § 771. 
Compromise, too, of the suit for resti- 
tution of conjugal rights, is permitted 
in England. Stanes v. Stanes, L. R. 
3 P. D. 42. There is this fundamental 
distinction between the English suit 
for divorce or judicial separation, and 
the suit for restitution of conjugal 
rights : that in the former instance the 
chief object is to free the petitioner ia 

296 



whole or in part from tlie marriage 
obligations ; but in the latter to control 
the other spouse so as to compel once 
more an unwilling cohabitation. See 
language of court in Firebrace v. Fire- 
brace, 39 L. T. 94. Restitution of con- 
jugal rights is a remedy unknown in 
the United States, where courts may 
finally part, but cannot forcibly reunite, 
the separated spouses. See Schoul. 
Hus. & Wife, §§ 482, 483 ; 1 Bish. Mar. 
& Div. 5th ed. § 771. And see as to 
specific performance of an agreement 
to separate, Gibbs v. Harding, L. R. 

5 Ch. 336. 

1 See Shaw, C. J., in Abbott v. Bay- 
ley, 6 Pick. 89 ; Benadum v. Pratt, 1 
Ohio St. 403; Spier's Appeal, 2 Casey, 
233; Mead v. Hughes, 15 Ala. 141; 
Rhea t-. Rhenner, 1 Pet. 105 ; iloore v. 
Stevenson, 27 Conn. 14 ; Schoul. Hus, 

6 Wife, § 486, and numerous cases 
cited, and appendix. And see the 
numerous statutes in almost every 
State in the Union, enlarging the rights 
of married women in such cases. 

2 See Stat. 20 & 21 Vict. c. 85 ; Mid- 
land R. R. Co. V. Pye, 10 C. B. n. s. 179. 
Chancery has long moulded its pro- 
ceedings to secure a like privilege. In 
re Lancaster, 23 E. L. & Eq. 127; 
Johnson v. Kirkwood, 4 Dru. & War. 
379. A right of action is conferred, 
too, under 33 & 34 Vict. c. 93. Moore 
V. Robmson, 27 W. R. 312. 



CHAP XVII.j SEPAEATION AND DIVORCE. § 220 

observes a recent American case, whether the husband may be 
deemed to have renounced his marital rights and rehxtionsJ 

The great contrariety of current legislation is a great ob- 
struction, however, to formulating a decided rule of English 
and American jurisprudence on this point. We have seen 
that, under the old common-law doctrine of coverture, the 
wife could not sue or be sued, or otherwise act as a single 
woman, unless tlie husband was under the disability of a 
civil death, which meant originally banishment and abjura- 
tion of^the realm. The wife's rights being enlarged by stat- 
ute under such circumstances, we have therefore to inquii'e 
into the scope of any statute in point. Some of our local 
acts are construed as affording a substitute for the common- 
law rule, and not as merely cumulative, and hence require a 
literal interpretation. In general, such legislation is to be 
considered as grafted upon the common law of coverture 
which prevailed when this country was settled, and at the 
Revolution. It contemplates abandonment, and not what 
might be designed as a merely temporary withdrawal from 
cohabitation ; and it regards the husband in general as com- 
pletely out of the jurisdiction of the State, never having 
entered it, or else having forsaken it.^ 

§ 220. Divorce Legislation in General. — Divorce laws have 
constantly given rise to most interesting and earnest discus- 
sions; and men differ very widely in their conclusions, while 
all admit the subject to be of the most vital importance to the 
peace of families and the welfare of nations. Some favor a 
rigid divorce system as most conducive to the moral health of 
the people ; others urge a lax system on the same grounds. 
On two points only do English and American jurists seem to 
agree ; first, that the government has the right to dissolve a 
marriage during the lifetime of both parties, provided the 
reasons are weighty ; second, that, unless those reasons are 
weighty, husband and wife should be divorced only by the 
hand of death .^ 

1 Ayer v. Warren, 47 Me. 217. separate maintenance to a wife, seefur- 

2 See, at length, Sclioul. IIus. & ther, Rclioul. Hus. & Wife, §§ 485,487. 
Wife, § 486, and appendix. And as to ^ Upon divorce causes and divorce 

297 



§ 221 THE DOMESTIC RELATIONS. [PART n. 

§ 221. Effect of Absolute Divorce upon Property Rights. — 
The effect of divorce from bonds of matrimony upon the 
property rights of married parties is substantially that of 
death, or rather annihilation. And, save so far as a statute 
may divide the property or restore to each what he or she 
had before, or a decree for alimony may fasten directly upon 
the property in question, the guilt or innocence of either 
spouse does not affect the case.^ This is a topic upon which 
the common law, from the iufrequency of divorce, furnishes 
no light, except by analogies. The settled usage of Parlia- 
ment in granting divorce has been to introduce property 
clauses to the above effect into the sentence of dissolution 
regulating the rights and liabilities of the respective parties,^ 
but even in these cases the rights of divorced parties as to 
tenancy by the curtesy, chattels real, and rents of the wife's 
lands, are still unsettled ; and in general, the consequence by 
act of Parliament " does not very clearly appear." ^ But 
under the new English Divorce Act,^ it is held in a recent 
case that where the wife, at the date of the decree of divorce 
a vinculo, was entitled to a reversionary interest in a sum of 
stock which was not settled before her marriage, and had 
been the subject of a postnuptial settlement ; and after the 
decree the fund fell into possession ; her divorced husband 
had no right to claim it.^ The English doctrine, as thus indi- 
cated, is that the same consequences as to property must 
follow the decree of dissolution by the divorce court as if 
the marriage contract had been annihilated and the marriage 
tie severed on that date. Such, too, was the spirit of later 
decisions.^ 

procedure, see Schoul. Hus. & Wife, law, namely, by a decree of dlssolu- 

Part IX. ; also Bish. Mar. & Div. 2 vols, tion ; and, as the husband was unable, 

passim. during the existence of the contract, to 

1 See Harvard College v. Head, 111 reduce this chattel into possession, I 
Mass. 209. must hold that tlie property remained 

2 Macq. Hus. & Wife, 210, 214. the property of the wife." Wilkinson 
» 2 Bright Hus. & Wife, 366. v. Gibson, L. R. 4 Eq. 162. 

4 Stats. 20 & 21 Vict. c. 8.5; 21 & 6 p^att v. Jenner, L. 11. 1 Ch. 493; 

22 Vict. c. 108; 23 & 24 Vict. c. 144. Fussell v. Dowding, L. R. 14 Eq. 421 ; 

6 Says Vice-Chancellor Wood ; Swift v. Wenman, L. R. 10 Eq. 15 ; 

" Here the contract has been deter- Prole v. Soad}^ L. R. 3 Ch. 220. And 

mined by a mode unknown to the old one who obtained a sentence of dissolu- 

298 



CHAP. XVII.] SEPARATION AND DIVORCE. 



§221 



In settlements and trusts involving intricate family arrange- 
ments, however, the English rule is not yet uniform and pos- 
itive.i 

In this country the effect of divorce a vinculo is frequently 
regulated by statute. And in general, and independently of 
statute, all transfers of property actually executed before 
divorce, whether in law or in fact, remain unaffected by the 
decree. For instance, personal choses of the wife, already 
reduced to possession by the husband, remain his.^ But as 
to rights dependent on marriage and not actually vested, a 
full divorce, or the legal annihilation, ends them. This 
applies to curtesy, dower, the right to reduce choses into 
possession, and property rights under the statutes of distri- 
bution.^ These doctrines are set forth in local codes, which 
frequently save certain rights, such as the wife's dower where 
divorce is occasioned by her husband's misconduct. And a 
provision under an antenuptial contract, which is plainly 
intended as a substitute or equivalent for dower in case the 
wife survives the husband, is barred by their divorce.* 



tion of marriage was held, moreover, 
not liable to be joined in an action for 
tort committed, by his wife during tlie 
coverture. Capel v. Powell, 17 C. B. 
N. s. 743. 

1 The most recent oases show a de- 
cided indisposition to forfeit a husband's 
rights to a trust fund where, at all 
events, the effect of annihilation would 
be to disturb the remote right of some 
innocent party, or without consider- 
ation as to which spouse offended. 
Fitzgerald v. Chapman, L. R. 1 Ch. D. 
563. Jessel, M. R., here discredits Fus- 
sell V. Dowding, and other cases cited 
suirra. And see Burton v. Sturgeon, 
L, R. 2 Ch. D. 318 ; Codrington v. Cod- 
rington, L. R. 7 H. L. 854. And in 
certain causes the Divorce Act confers 
the power to modify the marriage set- 
tlement upon final sentence. 20 & 21 
Vict. c. 85, § 45. Where application is 
made for that purpose, the judicial 
object of thus proceeding is, apparently, 
to prevent the innocent party from be- 
ing injuriously affected in property by 



the decree. Maudslay v. Maudslay, 
L. R. 2 P. D. 25G. On the decree for 
dissolution of marriage becoming abso- 
lute, it takes effect from the date of the 
decree nisi. Prole v. Soady, L. li. 3 
Ch. 220. 

2 Lawson v. Shotwell, 27 Miss. 630. 

3 Dobson V. Butler, 17 Mo. 87; 4 
Kent Com. 53, n., 54 ; Given v. Marr, 
27 Me. 112; Wheeler v. Hotchkiss, 10 
Conn. 225 ; Calame v. Calame, 24 N. J. 
Eq. 440 ; Hunt v. Thompson, 61 Mo. 
148 ; Schoul. Hus. & Wife, § 559 ; Rice 
V. Lumley, 10 Ohio St. 596. But see 
Wait V. Wait, 4 Comst. 95. 

* Jordan v. Clark, 81 111. 4G5. Here 
divorce vvas granted to A. for the fault 
or misconduct of A.'s wife, but the 
principle of the case was that the wife 
could only be entitled to receive the 
provision as A.'s widow. A divorce a 
vinculo obtained by the wife, though for 
tiie husband's misconduct, bars dower. 
Calame v. Calame, 24 N. J. Eq. 440. 
And see Gleason v. Emerson, 51 N. II. 
405 ; Hunt v. Tliompson, 61 Mo. 14& 

299 



§ 222 



THE DOMESTIC RELATIONS. 



[part II. 



As to torts a similar rule would probably apply .^ Separate 
property of a wife settled, or otherwise vested in her, is not 
to be disturbed by a divorce.^ 

§ 222. Effect of Partial Divorce upon Property Rights. — 
Divorce from bed and board, or nisi, produces, however, no 
such sweeping results ; the cardinal doctrine here being that 
the marriage remains in full force, although the parties are 
allowed to live separate. Here we must consult the phrase- 
ology of local statutes with especial care, in order to deter- 
mine the respective rights and duties of the divorced parties. 
Thus the consequence of judicial separation, under the 
present divorce acts of England, is to give to the wife, so long 
as separation lasts, all property of every description which 
she may acquire, or which may come to or devolve upon her, 
including estates in remainder or reversion ; and such prop- 
erty may be disposed of by her in all respects as if she were a 
feme sole ; and if she dies intestate it goes as if her husband 
had then been dead.^ 

In this country, independently of statutory aid, the prop- 



Cf. New York statute, construed in 
Schiflfer v. Pruden, G4 N. Y. 47. 

1 Chase v. Chase, G Gray, 157 ; 2 
Bish. Mar. & Div. § 724; Schoul. Hus. 
& Wife, § 559. And see Capel v. 
Powell, 17 C. B. N. s. 743. 

'If tiie husband receives any prop- 
erty of the wife after divorce, she may 
recover it in a suit for money had and 
received. 2 Bisli. Mar. & Div. 714; 
Legg V. Legg, 8 Mass. 99. See Kint- 
zinger's Estate, 2 Aslmi. 455. How 
far, on the divorce of the husband, his 
assignee may claim against the wife 
does not clearly appear ; but where tlie 
divorce was obtained tlirough liis fault, 
the wife's equitable provision, it seems, 
will be ftxvorably regarded as against 
him. 2 Bish. § 715, and conflicting 
cases compared ; Woods v. Simmons, 
20 Mo. 363 ; 2 Kent Com. 136 et seq. 
Divorce takes away the husband's 
right of administration upon the estate 
of his divorced wife 2 Bish. Mar. & 
Div. 5th ed. § 725; Altemus's Case, 1 
Ashm. 49. See, furtlier, as to the 

300 



effect of divorce, Schoul. Hus. & Wife, 
§ 561, and cases cited. 

2 Barclay v. Waring, 58 Ga. 86; 
Harvard College v. Head, 111 Mass. 
209 ; Schoul. Hus. & Wife, § 500 ; Jack- 
son V. Jackson, 91 U. S. Supr. 122. 

It is held, and upon that principle of 
sound policy which maintains inviolate 
the sanctity of the marriage union 
while discouraging stale and doubtful 
litigation to which their final and angry 
rupture might incite one of the married 
parties, that a divorced wife cannot 
maintain an action against her divorced 
husband upon an implied contract 
arising during coverture, Pittman v. 
Pittman, 4 Oreg. 298 ; nor for an al- 
leged assault committed upon her while 
they were husband and wife, Abbott v. 
Abbott, 67 Me. 304. Such remedies, so 
far as available at all, ought to be suf- 
ficiently available at the time the right 
accrued and during marriage. 

8 Stats. 20 & 21 Vict. c. 85, § 25 : 21 
& 22 Vict. c. 108, § 8. See Romiliy, 
M. R., in Re Insole, L. R. 1 Eq. 470. 



CHAP. XVII.] SEPARATION AND DIVORCE. 



§222 



erty rights of the parties divorced from bed and board remain 
in general unchanged. For this divorce is only a legal sepa- 
ration, terminable at the will of the parties ; the marriage 
continuing in regard to everything not necessarily withdrawn 
from its operation by the divorce.^ Thus, the husband still 
inherits from the wife, and the wife from the husband ; the 
one takes his curtesy, the other her dower; and even the 
right of reducing the wife's cJtoses in action into possession 
still remains to the guilty husband.^ But chancery, by virtue 
of its jurisdiction in awarding the wife her equity to a settle- 
ment, may, and doubtless will, keep the property from his 
grasp, and do to both what justice demands."^ On principle, 
the right to administer would seem not to be forfeited by 
one's divorce from bed and board .^ 



1 Dean v. Richmond, 5 Pick. 461 ; 2 
Bish. Mar. & Div. 5th ed. § 720 et seq. 

2 Clark I'. Clark, 6 Watts & S. 85 ; 
Kriger v. Day, 2 Pick. 316 ; Smodt v. 
Lecatt, 1 Stew. 590; Ames v. Chew, 5 
Met. 320. 

* Holmes v. Holmes, 4 Barb. 295; 
Schoul. Hus. & Wife, §§ 161, 5G2, 563. 

* But see limitations suggested in 
Schoul. Hus. & Wife, § 5G3. 

The recent English statutes give 
the wife, upon sentence of judicial 
separation, the capacity to sue and be 
sued on somewhat the same footing as 
a, feme sole. The rule in the United 
States is not uniform : but the ten- 
dency is clearly in the same direction. 
See 2 Bish. Mar. & Div. 5th ed. § 737, 
and cases cited ; Lefevres v. Murdock, 
Wright, 205 ; Clark v. Clark, 6 Watts 
& S. 85. And see, further, as to statu- 
tory provisions, including a division of 
property, Schoul. Hus. & Wife, § 564, 
and appendix ; 2 Bish. Mar. & Div. 
§§ 509-519. 

Concerning the conflict of laws, with 
respect of (1) marriage, (2) marital 
rights and duties, and (3) divorce, 
see Schoul. Hus. & Wife, §§ 566-575. 
As affecting the rights and duties 
of the marriage relation, Story, in his 
Conflict of Laws, after an extended 
discussion of the great diversity of 



laws existing in different countries, 
as to the incidents of marriage, lays 
down thefoHowingprimary rules, wliich 
are of general application. (1) Wiiere 
parties are married in a foreign coun- 
try, and there is an express contract 
respecting their rights and property, 
present and future, it will be held 
equally valid everywhere, unless, under 
the circumstances, it stands prohibited 
by the laws of the country where it is 
sougiit to be enforced. It will act 
directly on movable property every- 
where. But as to immovable property 
in a foreign territory, it will, at most, 
confer only a riglit of action, to be en- 
forced according to the jurisdiction rej 
sitce. (2) Where such an express con- 
tract applies in terms or intent only to 
present property, and there is a change 
of domicile, the law of the actual dom- 
icile will govern the rights of the par- 
ties as to all future acquisitions. (3) 
Where there is no express contract, the 
law of the matrimonial domicile will 
govern as to all the rights of the parties 
to their present property in that place, 
and as to all personal property every- 
where, upon the principle that mova- 
bles have no situs, or, rather, that they 
accompany the person everywhere. 
As to immovable property the law ret 
sitce will prevail. (4) Where there is 

301 



§ 222 



THE DOMESTIC RELATIONS. 



[part II. 



no change of domicile, tlie same rule 
will apply to future acquisitions as to 
present property. (6) But where there 
is a change of domicile, tlie law of the 
actual domicile, and not of the matri- 
monial domicile, will govern as to all 
future acquisitions of movable prop- 
erty ; and, as to all immovable prop- 
erty, the law rei sitae. Story Confl. 
Laws, §§ 184-187. And see Besse v. 
Pellochoux, 73 111. 285. 

He further adds that although in a 
general sense the law of the matri- 
monial domicile is to govern in relation 
to the incidents and effects of marriage, 
yet this doctrine must be received with 
many qualifications and exceptions, in- 
asmuch as no nation will recognize 
such incidents and effects when incom- 

302 



patible with its own policy or injurious 
to its own interests. So, too, perplex- 
ing questions will sometimes arise in 
determining upon the real matrimonial 
domicile of parties who marry /?i trans- 
itu, during a temporary residence 
abroad, or on a journey made for 
tliat purpose with the intention of re- 
turning. But the true principle in 
such cases is to consider as the real 
matrimonial domicile the place where, 
at the time of marriage, the parties in- 
tended to fix their abode, and not the 
place where the ceremony was in fact 
performed. Story Confl. Laws, §§ 189- 
199, and cases cited. See also 1 Burge 
Col. & For. Laws, 244-639; Wharton 
Confl. Laws, §§ 118-121, 1G6, 187-202 ; 
and Schoul. Hus. & Wife, § 570, note. 



PART HI. 

PARENT AND CHILD. 
CHAPTER I. 

OF LEGITIMATE CHILDEEN IN GENEEAL. 

§ 223. Parent and Child in General ; Children, Legitimate and 
Illegitimate. — The second of the domestic relations is that of 
Parent and Child ; a relation which results from marriage, and 
is, as Blackstone terms it, the most universal relation in 
nature.^ Both natural and politic law, morality, and the 
precepts of revealed religion alike, demand the preservation 
of this relation in its full strength and purity. In the first 
period of their existence, children are a common object of 
affection to the parents, and draw closer the ties of their 
mutual affection , then comes the education of the child, in 
which the parents have a common care, which further identi- 
fies their sympathies and objects ; the brothers and sisters of 
the child, when they come, bring with them new bonds of 
affection, new sympathies, new common objects ; and the 
habits of a family take the place of the wishes of an indi- 
vidual. Thus do children give rise to affections which still 
further tend to bind together the community by links of 
iron.2 

Children are divided into two classes, legitimate and ille- 
gitimate. The law prescribes different rights and duties for 

1 1 BI. Com. 447. 

2 1 Whewell Elements of Morality, 100; 2 Kent Com. 189. 

303 



§ 225 THE DOMESTIC RELATIONS. [PART III. 

these classes.^ It becomes proper, then, to consider them in 
order. Firsts then, as to legitimate children, to which topic 
alone the relation of parent and child in strictness applies ; 
this will occupy several chapters. 

§ 224. Legitimate Children in General. — A legitimate child 
is one who is born in lawful wedlock, or is properly brought 
within the influence of a valid marriage by reason of the 
time of birth. Legitimacy, as the word imports, will requiie 
that the child be born in a manner approved of by the Inw. 
If he is begotten during marriage and born afterwards, it is 
enough.^ 

§ 225. Presumption of Legitimacy. — The maxim of the civil 
law is Pater est quern nuptice demonstrant ; a rule frequently'' 
cited with approval by common-law authorities, though, as 
we shall soon see, differently applied in some respects.-^ A 
distinguished Scotch jurist pronounces this " a plain and 
sensible maxim, which is tlie corner-stone, the very founda- 
tion on which rests the whole fabric of human society." * 
BouUenois, a civil-law writer, likewise commends it as " a 
maxim recognized by all nations, which is the peace and 
tranquillity of States and families." ^ This maxim implies 
that it is always sufficient for a child to show that he is l)orn 
during the marriage. The law draws from this circumstance 
the necessary presumption that he is legitimate. Every child 
born in wedlock is presumed to be legitimate, and the child's 
paternity is provable by reputation. 

Strong, however, as this presumption may be, it is not 
conclusive at law. For there may be other circumstances ; ^ 
such as long-continued separation of the parents ; the impo- 
tence of the father ; also, if the offspring be posthumous, the 
length of period which has elapsed since the father's death. 
Such circumstances miglit render it physically and morally 

1 1 Bl. Com. 447. Child, 1, 2, and authoritios cited ; 1 

2 1 Bl. Com. 447 ; Fraser Parent & BurgeCol. & For. Laws, 59. 

Child, 1 : 1 Burge Col. & For. Laws, * Ld. Pres. Blair, in Routledge v. 
.59. Carruthers, 19 May, 1812, cited by Fra- 

3 1 Bl. Com. ib. ; Stair IIL 3, 42 ; 2 ser, !t<ipra. 

Kent Com. 212, n. ; Fraser Parent & •"• Bonllenois Traitc des Status, tome 

1, p. G2, also cited by Fraser, supra. 

304 



CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 225 

impossible that the child was born and begotten in lawful 
wedlock. The civil law, therefore, admitted four exceptions 
to the general maxim : first, the absolute and permanent im- 
potence of the husband ; second, his accidental impotence or 
bodily disability ; third, his absence from his wife during that 
period of time in which, to have been the father of the 
child, he must have had sexual intercourse with her; fourth, 
the intervention of sickness, vel alia causa} These conclud- 
ing words admit the classification to be imperfect. The com- 
mon-law rule, which subsisted from the time of the Year 
Books down to the early part of the last centur}^, declared 
the issue of everj'^ married woman to be legitimate, except in 
the two special cases of the impotency of the husband and his 
absence from tlie realm.^ But in Pendrell v. Peiidrell the 
absurd doctrine of making legitimacy rest conclusively upon 
the fact of the husband being infra q^mtuor niaria was ex- 
plotled.'^ Some Scotch jurists resolve the grounds upon 
which the presumption of legitimacy may be overthrown 
into two : first, that the husband could not have had sexual 
intercourse with his wife by reason of his impotency ; and 
second, that, having the power, he had in fact no sexual inter- 
course with her at the time of the conception.^ This seems 
to mean, first, that the husband physically could not ; second, 
that he actually did not ; but does not the second exception 
swallow the first ? Perhaps the safer course is to aban- 
don all attempts to classify ; and to hold, with Chancellor 
Kent, that the question of the legitimacy or illegitimacy of 
the child of a married woman is one of fact, resting o.n de- 
cided proof as to the non-access of the husband, and that 
these facts must generally be left to a jury for determina- 
tion .^ 

From the peculiarities attending the case of access or non- 

1 Dig. lib. 1, tit. 6, 1. 6 ; 1 Burge Col. * Frager Parent & Child, 4. 

& For. Laws, 60. 5 2 Kent Com. 211 ; 3 P. Wms. 275, 

2 2 Kent Com, 210 ; Co. Litt 244 a ; 276 ; Harg. n. 193 to Co. Litt. lib. 2 ; 
1 Eoll. Abr. 358. Eex v. Luffe, 8 East, 193. And to the 

3 Stra. Eep. 925; 2 Kent Com. 211, same effect, see Blackburn v. Craw- 
and cases cited ; Shelley v. (1806), fords, 3 Wall. 175. 

13 Ves. 56. 

20 305 



§ 225 THE DOMESTIC RELATIONS. [PART III. 

access, legitimacy or illegitimacy, great indulgence is to be 
shown by the courts. Said Lord Ersldne : " The law of 
England has been more scrupulous upon the subject of 
legitimacy than any other, to the extent even of disturbing 
the rules of reason," ^ Still later was it asserted in English 
chancery that the ancient policy of the law remained unal- 
tered ; and that a child born of a married woman was to be 
presumed to be the child of the husband, unless there was 
evidence, beyond all doubt, that the husband could not be 
the father.2 And it is at this day admitted that the pre- 
sumption thus established by law is not to be rebutted by 
circumstances which only create doubt and suspicion ; but 
that the evidence against it ought to be strong, distinct, satis- 
factory, and conclusive.^ 

So far, indeed, is legitimacy favored at law, that neither 
husband nor wife can be a witness to prove access or non- 
access. This is clearly established in England ; "* and it is 
understood to be the law likewise in this country, though the 
decided cases seem to turn upon the admissibility of the wife's 
testimony.^ Such evidence is treated as contra bonos mores. 
Yet the wife is an admissible witness to prove her own adul- 
tery, and in questions of pedigree ; and husband and wife 
ma}'^ prove facts, such as marriage and date of the child's 
birth ; these may be conclusive as to illegitimacy.^ Much 
testimony, extremely delicate, is also taken in bastardy and 
divorce proceedings. When, therefore, the courts shut their 

1 Shelley v. , 13 Ves. 56. v. Page, 29 Penn. St. 420. Tlie father's 

2 Head v. Head, 1 Sim. & Stu. 150 declarations as to a son's illegitimacy 
(182-3) ; Banbury Peerage Case, ib. 153 ; are competent. Barnum v. Barnum, 42 
Pendrell v. Pendrell, 2 Stra. 925. Md. 251. A mother may testify that 

3 Hargrave v. Hargrave, 9 Beav. she was always true to the reputed 
552 ; Archley v. Sprigg, 33 L. J. Ch. father, her husband, and that no other 
345 ; Plowes r. Bossey, 8 Jur. n. s. 352; man could have been the father of the 
10 W. R. 332. child. Warlick v. White, 76 N. C. 

* Rex V. Inhabitants of Sourton, 5 175. Sem/j/e, such mother's truthfulness 

Ad. & El. 188 ; Patchett v. Holgate, 3 may be impeached, but not her general 

E. L. & Eq. 100 ; 15 Jur. 3u8 ; In re character for chastity. Jb. 
Rideout's Trusts, L. R. 10 Eq. 41. 6 See 1 Greenl. Evid. §§ 343,344; 

5 2 Stark. Evid. § 404 ; 1 Greenl. Caujolle v. Ferric, 23 N. Y. 90. And 

Evid. § 344; Phillips v. Allen, 2 Allen, see Sale v. Crutchfield, 8 Bush, 636; 

453 ; People v. Overseers, 15 Barb. 286 ; Dean v. State, 29 Ind. 483. 
Parker v. Way, 15 N. H. 45; Dennison 

306 



CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 225 

eyes so tightly against this proof of access or non-access, per- 
haps it is not because they are shocked, but lest they should 
see illegitimacy established. 

To carry the presumption of legitimacy so far as to dis- 
turb the rules of reason is unjust ; for no man should be 
saddled with the obligations of children which clearly do not 
belong to him. And the rule of evidence in the English 
courts has been severely and justly criticised, not without 
some good results.^ The decision of the House of Lords in 
the celebrated Banbury Peerage case, proceeded upon the 
reasonable assumption that moral as well as physical impossi- 
bilities may affect the rule of legitimacy. Here husband and 
wife occupied the same house at the very time the child must 
have been begotten, and no case of impotency was made out, 
and yet that child was held not to be the child of the husband ; 
for the testimony as to a moral impossibility was sufficiently 
strong notwithstanding.^ This case was confirmed by another, 
where husband and wife had voluntarily separated, but the 
husband resided at a distance of only fifteen miles, and some- 
times visited his wife ; and the wife was delivered of a child, 
which was pronounced a bastard, from evidence of the con- 
duct of the wife and her paramour. Here it was said, " The 
case, therefore, comes back to the question of fact." ^ Impo- 
tence^ of the husband, and his absence from the realm, sug- 
gest then but two classes of cases, and those not the only 
ones, where children may now be pronounced bastards.^ 

- 2 Kent Com. 211, n. ; Fraser 552. " I apprehend," said Lord Lang- 
Parent & Child, 7. dale, " that evidence of every kind, 

- 1 Sim. & Stu. 153. See Nicolas on direct or presumptive, may be adduced, 
Adulterine Bastardy, 181, a volume for the purpose of showing the absence 
written to show that tliis case overturns of sexual intercourse which, in cases 
the old law of England. where there has been some society, in- 

5 Morris v. Davies, 5 CI. & Fin. 463. tercourse, or access, has been called 

And see Barony of Saj^e & Sele, 1 CI. non-generating access. We have, tliere- 

& Fin. N. s. 507 ; Sibbett r. Ainsley, 3 fore, to attend to the conduct and the 

L. T. N. s. 583, Q. B. ; Fraser Parent feelings, as evidenced by the conduct 

& Child, 8 ; King v. Luffe, 8 East, 193 ; of the parties towards each otlier and 

also, Hitchins r. Eardley, L. R. 2 P. & the offspring, and even to the declara- 

D. 248, as to admitting declarations of tions accompan^dng acts, which are 

the person whose legitimacy is at properly evidence. Such circumstances 

issue. are of no avail against proper evidence 

* Hargrave v. Hargrave, 9 'Beav. of generating access; but they may 

307 



226 



THE DOMESTIC RELATIONS. 



[part III. 



Ill this country, cases have not unfrequently arisen which 
involve the legitimacy of offspring ; and the more reasonable 
doctrine favors legitimacy to about the same extent as the 
later English decisions.^ The presumption of legitimacy is 
strongly carried, as the cases below cited indicate ; though 
not so far as to exclude proof of non-access of the husband, 
or such other fact as might rebut this presumption, and show 
that the child of a married woman was in reality a bastard.^ 

§ 226. Legitimation of Illicit Offspring by Subsequent Mar- 
riage. — In respect of the legitimation of offspring by the sub- 
sequent marriage of their parents, the civil and common law 
systems widely differ. By the civil and canon laws, two 
persons who had a child as the fruit of their illicit intercourse 
might afterwards marry, and thus place their child to all in- 



have weight, when the effect of that 
evidence is doubtful. If the weiglit is 
not such as to convince tiie minds of 
tliose who have to determine the mat- 
ter, the effect may only tend to shake, 
without removing, the presumption of 
legitimacy, which in sucii a case must 
prevail." 

1 Patterson v. Gaines, 6 How. (U. S.) 
582; 2 Kent Com. 211, and cases cited; 
Hemmenway v. Towner, 1 Allen, 209; 
Van Aernam v. Van Aernam, 1 Barb. 
Ch. 375 ; Wright v. Hicks, 15 Geo. 160. 

2 See Van Aernam v. Van Aernam, 
1 Barb. Ch. 375 ; Kleinert v. Ehlers, 38 
Penn. St. 439 ; Phillips v. Allen, 2 Al- 
len, 453 ; Hemmenway v. Towner, 1 
Allen, 209; State v. Herman, 13 Ire. 
602 ; Tate v. Pene, 19 Martin, 548 ; 
Cannon v. Cannon, 7 Humph. 410 ; 
State V. Shumpert, 1 S. C. n. s. 85; 
Strode v. Magowan, 2 Bush, C21 ; Black- 
burn V. Crawfords, 3 Wall. 175. Col- 
lateral proof of legitimacy is not to be 
favored. See Kearney v. Denn, 15 
Wall. 51. But under suitable circum- 
stances the grant of letters of admin- 
istration may be conclusive in other 
courts. CaujoUe v. Ferric', 13 Wall. 465. 

Formerly, in portions of the United 
States, slave marriages were deemed 
unlawful, and the offspring illegiti- 

308 



mate. Timrains v. Lacy, 30 Tex. 115. 
But slavery no longer exists, and the 
tendency of our legislation is now to 
uphold as flir as possible former mar- 
riages of colored persons, and the legiti- 
macy of their offspring, cohabitation 
continuing. See White v. Ross, 40 Geo. 
339; Allen v. Allen, 8 Bush, 490; 
Clements v. Crawford, 42 Tex. 601 ; 
Daniel v. Sams, 17 Fla. 487 ; supra, § 17 
To impugn a child's paternity, 
reputation of the mother for unchas- 
tity is admissible, if at all, only as to 
uncliastity prior to connection with the 
reputed father. Morris v. Swaney, 7 
Heisk. 591 ; Warlick v. White, 76 N. C. 
175. 

If the son was colored and the mother 
an Indian, the color will be presumed 
to have been derived from the mother 
rather than disturb the presumption 
of legitimacy. Illinois Land Co. v. 
Bonner, 75 111. 315. Where parents 
and other members of the family have 
long and consistently treated a child as 
legitimate, this affords strong presump- 
tion of legitimacy in any case. Ih. ; 
Gaines v. Mining Co., 32 N. J. Eq. 86. 
But not proof indisputable. Bussom 
V. Forsyth, 32 N. J. Eq. 277. 

And as to proof of marriage, see 
also Schoul. IIus. & Wife, §§ 38, 39. 



CHAP. I.] LEGITIMATE CHILDKEN IN GENERAL. § 226 

tents and purposes on the same footing as their subsequent 
offspring, born in lawful wedlock.^ But the common law, 
though not so strict as to require that the child should be 
begotten of the marriage, rendered it indispensable that the 
birth should be after the ceremony .2 Let us notice this point 
of difference at some length. 

It appears that the law of legitimation per suhsequens matri- 
monium is of Roman origin ; introduced and promulgated by 
the first Christian Emperor, Constantino, as history alleges, 
at the instigation of the clergy. This was an innovation upon 
the earlier Roman system ; and the object of its introduction 
was to put down that matrimonial concubinage which had 
become so universal in the empire.^ Justinian afterwards 
made this law perpetual.* Its first appearance in the canon 
law is found in two rescripts of Pope Alexander III., pre- 
served in the Decretals of Gregory, and issued in 1180 and 
1172.5 These extended the benefits of the marriage to the 
offspring of carnal love, and not merely to the issue of sys- 
tematic concubinage. This law of legitimation was intro- 
duced into Scotland within the range of authentic history.^ 
It is also admitted, with different modifications, into the codes 
of France, Spain, Germany, and most other countries in 
Europe.'' 

The principle to which the law of legitimation per suhse- 
quens matrimonium is to be referred has been a subject of 
controversy. The canonists based the law not on general 
views of expediency and justice, but upon a fiction which 
they adopted in order to reconcile the new law with estab- 
lished rules ; for, assuming that, as a general rule, children 

1 2 Kent Com. 208 ; 1 Burge Col. & ^ " Licita consuetucio semimatrimo- 
For. Laws, 92. nium." Cod. lib. 6, tit. 57. 

2 1 Bl. Com. 454. If the child be * Taylor's Civil Law, 272 ; Eraser 
born after the ceremon}', even though Parent & Child, 32 ; 1 Burge Col. & 
it be but a few weeks later, the pre- For. Laws, 92, 93. 

sumption of paternity against the bus- ^ Deer. IV. 17, 1 ; IV. 17, 6, cited 

band is almost irresistible, and the in Eraser Parent & Cbild, 33. " Tanta 

burden is on him to show affirmatively est enim vis sacramenti (matrimonii) 

to the contrary, in order to establish ut qui antea sunt geniti post contractum 

the cliild's status as illegitimate. Gard- matrimonium habeantur legitimi." 
ner v. Gardner, 2 App. Cas. 723. Cf. 6 Eraser Parent & Child, 32, 33. 

In re Corlass, 1 Ch. D. 460. ^ 1 Burge Col. & Eor. Laws, 101. 

309 



§ 227 THE DOMESTIC RELATIONS. [PART HI. 

are not legitimate unless born in lawful wedlock, they de- 
clared that, by a fiction of law, the parents were married when 
the child was born. Such reasoning, by no means uncommon 
in days when the wise saw more clearly what was right, than 
why it was so, has not stood the test of modern logic ; and 
the Scotch courts have placed the rule once more where its 
imperial founders left it ; namely, on the ground of general 
policy and justice. " Legitimation is thought to be recom- 
mended by these considerations of equity and justice, that it 
tends to encourage what is at first irregular and injurious to 
society, into the honorable relation of lawful matrimony ; and 
that it prevents those unseemly disorders in families which 
are produced where the elder-born children of the same 
parents are left under the stain of bastardy, and the younger 
enjoy the status of legitimacy.^ " 

This doctrine of the civil law has found great favor in the 
United States. It has prevailed for many years in the States 
of Vermont, Maryland, Virginia, Georgia, Alabama, Missis- 
sippi, Louisiana, Kentucky, Missouri, Indiana, and Ohio.^ 
So in Massachusetts, bastards are to be considered legitimate 
after the intermarriage of their parents and recognition by the 
father.^ And similar statutes are to be found in Maine, New 
Hampshire, Pennsylvania, Vermont, Indiana, and elsewhere.'* 

§ 227. Legitimation by Subsequent Marriage not favored in 
England. — On the Other hand, the English law has very 

1 Fraser Parent & Child, 35; Munro Adams, 36 Geo. 236; Morgan v. Perry, 
V. Munro, 1 Rob. H. L. Scotch App. 51 N. H. 559 ; Brown v. Belmarde, 4 
492. Kans. 41. In some States still another 

2 Griffith's Law Reg. passim ; 1 mode of legitimation, for inheritance, 
Surge Col. & For. Laws, 101. This if not for all other purposes, is per- 
provision protects tlie offspring of an mitted by law as to such offspring ; 
adulterous connection as well as that of namely, by the father's formal deelara- 
parents who were free to contract mar- tion, or that of both parents, properly 
riage when the children were born, attested, which is filed in court and re- 
Hawbecker v. Hawbecker, 43 Md. 516. corded. This might be called legitima- 

3 Mass. Gen. Sts. 1860, c. 91. tion by public or judicial record after 
* Maine Laws, 1852, c. 266 ; Penn. intermarriage of parents. See Lingen 

Laws, 1857, May 14 ; Vermont R. S. v. Lingen, 45 Ala. 410, 414 ; Pina v. 

1863, c. 56 ; Ind. R. S. 1862, c.46. And Peck, 31 Cal. 359; Talbot v. Hunt, 28 

see Graham v. Bennett, 2 Cal. 503 ; La. Ann. 3. Recognition of a less for- 

Starr v. Peck, 1 Hill (N. Y.), 270; mal character suffices for purposes of 

Sleigh V. Strider, 5 Call, 439 ; Dannelli inheritance in Iowa. Crane v Crane, 

V. Dannelli, 4 Bush, 51 ; Adams v. 31 Iowa, 296. 

310 



CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 227 

strongly opposed the whole doctrine of legitimation per sub- 
sequens matrimonium. Even so far back as the reign of 
Henry III. is found a memorable instance where the peers 
refused to change the law in this respect, when urged to do 
so by the English bishops ; declaring with one voice, quod 
nolunt leges Anglice mutare, quce hue usque tisitatce sunt et ap- 
prohatce} Jealousy of canonical influence may partially ac- 
count for this conduct, if not prejudice against the civil law 
generally. Certain it is that most English jurists have ever 
since stubbornly maintained the superiority of their own 
maxims, which place the immutability of the mairiage rela- 
tion above all the tender promptings of humanity towards 
innocent sufferers. Even Blackstone vigorously assails the 
civil-law doctrine, urging against it several rather artificial 
objections, in the apparent belief that legal consistency is 
better than natural justice.^ But on the other hand, Selden 
mentions that the children of John of Gaunt, Duke of Lan- 
caster, were legitimated by an act of Parliament, in the 
reign of Richard II., founded on some obscure common-law 
custom.^ 

Upon such principles it has been decided by the House of 
Lords, that where a marriage is in its inception unlawful, 
being at a time when the woman's first husband must have 
been alive, children born even after the time when it was 
presumed that the first husband had died, must be pro- 
nounced illegitimate ; the mere continuance of the cohabita- 
tion after that event being insufficient, without celebration, to 
change the character of the connection.* Nor will an abso- 
lute presumption of law be raised as to the continuance of life 
to support such legitimacy ; for in every instance the circum- 
stances of the case must be considered.^ And so strict is the 
rule, that where a person, born a bastard, becomes, by the 
subsequent marriage of his parents, legitimate according to 

' Stat, of Merton, 20 Hen. IIL c. * Lapsley v. Grierson (1848), 1 CI. 

9; 2 Kent Com. 209 ; 1 Bl. Com. 456. & Fin. n. s. 498; Cunningham v. Cun- 

2 1 Bl. Com. 454, 455. ninghara, 2 Dow, 482. 

3 Selden on Fleta, c. 9, § 2. And * Lapsley v. Grierson, ib., explain- 
see Barrington, p. 38; 2 Kent Com. ing Rex v. Twyning, 2B. & A. 386. 
209. 

311 



§ 229 THE DOMESTIC RELATIONS. [PART III. 

the laws of the country in which he was born, he is still 
a bastard, so far as regards the inheritance of lands in 
England. 1 

§ 227 a. Legitimacy of Offspring born after Divorce. — As to 
the status of children born after divorce, partial or complete, 
little can be stated from the books ; for such divorces hardly- 
existed at the common law.^ They are probably illegitimate 
prima facie, if born of the divorced mother within an unrea- 
sonable time after separation.^ 

§ 228. Legitimacy in Marriages Null but Bona Fide contracted. 
— The issue of marriages rendered null and void are on gen- 
eral principles necessarily illegitimate. Opposed to this is 
the civil-law doctrine of putative marriages, first introduced 
into the canon law by Pope Innocent III. ; which upholds tlie 
legitimacy of the children in cases where the parties, or either 
of them, bona fide believing that they could marry, had en- 
tered into the contract, while there was some unknown im- 
pediment existing.* This subject is regulated by statute to a 
great extent in this country, and here again our system con- 
forms to the civil rather than the common law.^ 

§ 229. Legitimation by the State or Sovereign. — Legitima- 
tion by rescript of the Emperor appears in the Institutes of 
Justinian.^ Still later did the Pope, assume the power to 
grant the status of legitimacy ; and in many of the canonical 
dispensations occur clauses of this sort.'' The effect of these 

1 Doe d. Birtwhistle v. Vardill, 6 Montgomery v. Montgomery. 3 Barb. 
Bing. N. C. 385 ; 7 CI. & Fin. 895. And Ch. 132. 

see c. 6, post. ^ St. George v. St. Margaret, 1 Salk. 

The only exception permitted by 123 ; 2 Bish. Mar. & Div. § 740. 
the common law under this general liead * Fraser Parent & Child, 22 et seq. ; 

was, that where the child whose parents 1 Burge Col. & For. Laws, 96. See 

subsequently married entcretl into pos- Lapsley u. Grierson, 1 CI. & Fin. N. s. 

session of his father's lands after his 498, cited supra. 

fatiier's death, and kept possession ^ See supra, § 22. And see Graham 

until his own death, so that they de- v. Bennett, 2 Cal. 503. Yet there is a 

scended to his own issue, no disturb- case, that of Sir Kalph Sadlier, where 

ance of title was permitted on the plea Parliament gave relief. See Nicolas 

of such child's illegitimacy. Bussom Adult. Bast. 61-63 ; Fraser Parent & 

V. Forsyth, 32 N. J. Eq. 277. Child, 24 ; Burnett's History, book 1, 

2 See Husband & Wife, supra, § 22; c. 19 ; Riddell Peer & Cons. Law, 421. 
2 Bish. Mar. & Div. 5th ed. § 559 ; 6 Nov. 74, c. 1, 2 ; and 89, c. 9. 



7 See Fraser Parent & Child, 43. 



312 



CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 230 

high-sounding clauses is now of little consequence.^ The 
English Parliament, by virtue of its transcendent power, may 
render a bastard legitimate and capable of inheriting.^ This 
same power has been claimed for the legislatures of the 
United States.^ And except so far as legislative acts may 
come under constitutional restraints against impairing the 
obligation of contracts, there seems no reason why they should 
not be uniformly upheld. 

§ 230. Domicile of Children. — The domicile of a child's 
origin is to be determined by the domicile of his parents ; or, 
to speak more strictl}^ of his father. We speak at this time 
only of legitimate children. The domicile of origin remains 
until another is lawfully acquired. And since minors are not 
sui juris, they may not change their domicile during their 
minority, though they may when of full age ; hence they 
retain during infancy the domicile of their parents ; if the 
parents change their domicile, that of the infant children fol- 
lows it ; and if the father dies, his last domicile is that of the 
infant children.* The surviving mother may change the 
domicile of her minor children, provided she do so without 
fraudulent views to the succession of their estate; though it 
would appear that she cannot change it after her remarriage.^ 
In general, dwelling at a certain place is prima facie proof 

1 See Fraser Parent & Cliild, 43. Tuttle, 30 Ala. 013. Tlie widow's re- 

2 1 Bl. Com. 459. And see Stat. 6 moval from tlie liomestead must not 
Will. IV. c. 22. jirejudice the children's claim thereto. 

3 Beall i^ Beall, 8 Ga. 210 ; VidaU. Showers v. Pobinson, 43 Mich. 502. 
Commajere, 13 La. Ann. 516. It will After the mother remarries, the domi- 
be presumed that a statute of this kind cile of the child ceases to change, and 
confers legitimacy only so far as to does not follow that of the step-father, 
give the capacity to inherit. Grubb's Ryall i'. Kennedy, 40 N. Y. Super. 347. 
Appeal, 58 Penn. St. 55. A female infant cannot change her own 

* Story Confl Laws, §§ 45, 4fi, and domicile, even for the purpose ol annul- 

cases cited ; 1 Burge Col. & For. Laws, ling her marriage. Blumenthal v. Tan- 

33; Abington v. North Bridgewater, 23 nenholz, 31 N. J. Eq. 194. 
Pick. 170. Taylor v. Jeter, 33 Ga. 195; Following the usual rule, however, 

Daniel v. Hill, 52 Ala. 430; Wharton the real estate, even of children, de- 

Confl. § 41. But see Ishan v. Gibbons, scends according to the law of situs, 

1 Bradf. Sur. 70 ; Somerville v. Somer- and the personal according to the domi- 

ville, 5 Ves. 750. cile. See this applied to a child ille- 

^ Potinger v. Wightman, 3 Mer. 67 ; gitimate by the rule of the situs in 

1 Burge Col. & For. Laws, 39 , Brown Miller v. Miller, 25 N. Y. Supr. 507. 
V. Lynch, 2 Bradf. Sur. 214 ; Carlisle v. 

313 



§ 231 THE DOMESTIC RELATIONS. [PART III. 

that a person is domiciled there. This question of domicile 
may be of importance in determining the grant of administra- 
tion on a deceased infant's estate, or, if the child be alive, of 
his guardian's appointment. 

Priyna facie, the infant's residence or domicile is that of his 
parent, and such it will remain during minority, in spite of 
his temporary absence at school or elsewhere. Nor can he of 
his own motion acquire a new domicile, since he is not a per- 
son sui juris} But his domicile may be changed by his father, 
if he has one ; otherwise, according to the best modern author- 
ities, by the surviving mother until her remarriage; and per- 
haps even by the guardian himself, although not a relative, 
provided he act in good faith.^ The intent of the parent or 
guardian in such cases is always material ; but this intent is 
to be determined by facts. The original domicile of an infant 
is that of his parents at the time of his birth. ^ 

§ 231. Conflict of Laws as to Domicile and Legitimacy — 
Some writers have said that, when the laws of two countiies 
are in conflict, the legitimacy or illegitimacy of children is to 
be determined by the domicile of origin.* Others, again, that 
it is dependent upon the lex loci of marriage.^ Between these 
writers there is no real discrepancy ; for in every such case 
two inquiries are involved, the one whether the marriage was 
in itself lawful, the other whether the child was legitimate by 
the marriage. Of the conflict of laws regarding marriage we 
have already spoken.*^ That involving the status of legiti- 
macy is now under consideration. 

A conflict manifestly arises between the laws of domicile of 
origin and subsequent marriage, and the laws of the actual 
domicile or situs of property, where those of the one country 
admit legitimation per subsequens matrimoniiim, and those of 
the other do not. As, for instance, where children are born, 

1 Macphers. Inf. 579 ; Brown v. ^ See furtlier, post, Part IV. c. 5, as 
Lynch, 2 Bradf. 214 ; Story Confl. to Guardian & Ward. 

Laws, § 46. ^ \ Burge Col. & For. Laws, 111 ; 

2 Potinger v. Wightman, 3 Mer. 67 ; Fraser Parent & Cliild, 45. 

2 Kent Com. 227, 430; 1 Burge Col. & ^ Story Confl. Laws, § 105, Whar- 

For. Laws, 39; Brown v. Lynch, 2 ton Confl. §§ 35, 41. 

Bradf. 214. •> See Husband & Wife, p. 301, supra. 

311 



CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 231 

and their parents afterwards intermarry in certain of the 
United States, or in Scotland, and then remove with their 
children to England ; or where such children are deemed to 
have acquired property rights in the last-named country. On 
this point there is much diversity of opinion. And the Eng- 
lish courts have uniformly maintained their distinctive policy 
with considerable zeal in all doubtful cases. Thus particu- 
larly was this done in the case of Birtwhlstle v. Vardill, where 
a child, legitimate to all purposes in Scotland, was denied the 
full rights of a lawful child in England.^ Yet the law of for- 
eign countries as to legitimacy is so far respected in England 
that a person illegitimate by the law of his domicile of birth 
will be held illegitimate in England.^ 

The doctrine of general writers is, that the status of legiti- 
macy or illegitimac}^, or the capacity to become legitimate per 
s^ibsequens matrimonium, is governed by the law of the domi- 
cile of the child's origin.^ And, since the domicile of origin 
is that of the father, the great leading fact to be ascertained 
in such inquiries will be generally the domicile of the father.* 
A person born before wedlock, who in the country of his birth 
is considered illegitimate, will not, by a subsequent marriage 
of his parents in another country, by whose laws such a mar- 
riage would make him legitimate, cease to be illegitimate in 
the country of his birth. ^ On the other hand, without a sub- 
sequent marriage of his parents, lawful by the laws of the 
land where celebrated, it is clear that any child must remain 
illegitimate, whatever be the domicile of his origin, 

1 7 Cl. & Fin. 895 ; 4 Jur. 1076 ; ib. In this country the doctrine of Birt- 
5 B. & C. 438 ; Story Confl. Laws, § 93 whistle v. Vardill is sometimes followed 
et seq., where the doctrine of Birtwhis- in matters of inheritance. Smith v. 
tie y. Vardill is strongly combated. See Derr, 34 Penn. St. 126. And this, not- 
Boyes v. Bedale, 12 W. R. 232, before withstanding the child was begotten in 
Wood, V. C. ; Story Confl. Laws, 6th the State where the question of inherit- 
ed. § 93 w, n. by Redfield. And see ance afterwards arose. Lingen v. Lin- 
Goodman V. Goodman, 3 Gif. 643. gen, 45 Ala. 410. See Miller v. Miller, 

2 Munro v. Saunders, 6 Bligh, 468; cited n. supra. 

cases cited in Birtwhistle v. Vardill, 9 ^ 1 Burge Col. & For. Laws, 111. 

Bligh, 52. But a foreign legitimation And see Skottowe v. Young, supra. 
was so far respected in a late case that * Fraser Parent & Child, 45. 

a succession tax was not laid upon the ^ Story Confl. Laws, § 106. See 

child as a stranger in blood. Skottowe Succession of Caballero, 24 La. Ann. 

V. Young, L. R. 11 Eq. 474. 573. 



o 



15 



§ 232 THE DOMESTIC RELATIONS. [PAET III. 

§ 232. Parental Relation by Adoption. — By adoption a quasi 
parental relation was sometimes constituted at the civil law. 
Adoption is the taking or choosing of another's child as one's 
own.i The adoption of children is still regulated in Germany 
and France, but is not generally recognized in English or 
American law. Adoption was not possible by our old com- 
mon law. But in Massachusetts it is recently provided that 
under a judicial decree, rendered upon due investigation, any 
person may adopt as his own the child of others ; and that 
the child so adopted shall be deemed, for the purposes of in- 
heritance and all other legal consequences and incidents of 
the natural relation of parents and children, the child of the 
parents by adoption, the same as if he had been born to them 
in lawful wedlock.^ In Louisiana, the laws once authorized 
adoption ; but this was changed by the Code of 1808. Yet 
adoption by special act of the legislature is not unknown in 
that State.^ There are other States in which adoption is now 
permitted, and the rights of the parent b}^ adoption are treated 
substantially as those of a natural parent.* But our local leg- 
islation has sometimes discountenanced the adoption of a 
stranger as co-heir with one's own child.^ 

The method of adoption in States which permit it is pointed 
out by local law. In some States a written instrument must 
be executed and recorded.^ In others a judicial decree, upon 
due notice to kindred, or their assent, is requisite.' Under 

1 Inst. I. 11, 1 ; Bouvier Law Diet. Eoberts, 115 Mass. 262. And see Ing- 
" Adoption." ram i-. Soutten, L. R. 7 H. L. 408. 

2 Mass. Gen. Sts. c. 110 ; Sewall v. « Tyler v. Reynolds, 53 Iowa, 146. 
Roberts, 115 Mass. 262. ^ Ballard v. Ward, 89 Fenn. St. 358. 

3 Vidal V. Commajere, 13 La. Ann. The Louisiana statutes, as to adoption, 
616. do not mean to abridge the right of a 

* Rives V. Sneed, 25 Ga. 612 ; Lunay natural tutor to his minor child. Suc- 

V. Vantyne, 40 Vt. 501. cession of Forstall, 25 La. Ann. 430. 

5 Teal V. Sevier, 26 Tex. 516. See The adoption by instrument may re- 
Johnson's Appeal, 88 Penn. St. 846 ; quire the surviving parent to assent. 
Wagner v. Varner, 50 Iowa, 532. An Long v. Hewitt, 44 Iowa, 368. But the 
adopted child usually inherits from the release of parental authority is not rev- 
adopting parent, and vice i^ersa ; but ocable at pleasure. Jones v. Cleg- 
otherwise as to collateral kindred, horn, 54 Ga. 9. Equity cannot dispense 
Barnhizel r. Ferrell,47 Ind. .335. Such with strict statute compliance as to 
child may inherit under a trust to one's adoption. Long v. Hewitt, supra. 
"issue," though not where "heir of A statute making an adopted child 
body" is the e.xpression, Sewall v. legally the cliild of the parents by adop- 

316 



CHAP. II.] DUTIES OF PARENTS. § 234 

the Roman civil law consanguinity was not, as our English 
common law regards it, an essential basis to the filial rela- 
tion ; for infants were exposed to death, and indifference to 
blood offspring, as well as to the ties of lawful wedlock, char- 
acterized the law of family in the decaying age of the empire. 
Adoption was a convenience, however, even thus, for the 
transmission of wealth and titles ; and by adoption, more- 
over, we find an nnfruitful couple at the present day, and 
in our own country, grafting the tree, in obedience to the 
best of parental instincts. 



. CHAPTER 11. 

THE DUTIES OF PARENTS. 

§ 233. Leading Duties of Parents enumerated. — Three lead- 
ing duties of parents as to their legitimate children are 
recognized at the common law : firsts to protect ; second^ to 
educate ; thirds to maintain them. These duties are all en- 
joined by positive law ; yet the law of the natural affections 
is stronger in upholding such fundamental obligations of the 
parental state. ^ 

§231. Duty of Protection; Defence, Personal and Legal. — 
First, as to protection : that cover or shield from evil and 
injury which is afforded by the parent. This duty the 
stronger owes to the weaker, and especially does the father 
owe it to his child, so long as the latter remains compara- 
tively helpless. This obligation may be shifted in time, as 

tion is not unconstitutional unless in- rules of descent are not necessarily 

terfering witli vested riglits. Sewall r. changed bj' statutes of adoption ; but 

Roberts, 115 Mass. 262. Under the rule on death of an adopted child his estate 

of comity, adoption in another State goes to his blood relations. Reinders 

may be liere recognized under suitable v. Koppelmann, 68 Mo. 482. 
circumstances. Ross r. Ross, 120 Mass. - 1 Bl. Com. 447 ; 2 Kent Com. 189 ; 

243. But not where the courts of that Taylor's Civil Law, 383 ; Puff. b. 4, 

State had not jurisdiction. Foster v. ch. 11, §§ 4, 5. 
Waterman, 124 Mass. 592. General 

317 



§ 235 THE DOMESTIC RELATIONS. [PART III. 

age adds to the strength of the one, and the infirmities of 
the other. 

It is to the credit of our civilization that the natural duty 
of protection is rather permitted than enjoined by any muni- 
cipal laws ; nature in this respect " working so strongly," to 
use the forcible words of Blackstone, " as to need rather a 
check than a spur." ^ The strongest illustration of protec- 
tion at the common law which is furnished by this learned 
writer, — that of a father who revenged his son's injury by 
going near a mile and beating the offender to death with a 
cudgel, — though affording a questionable legal principle, as 
he puts it, at least shows what the verdicts of our juries are 
constantly confirming, that the sympathies of human tribu- 
nals are with him who defends his own offspring, even when 
his zeal outruns his discretion.^ 

A parent may, b}^ the common law of England, maintain 
and uphold his children in their lawsuits, without being 
guilty of the legal crime of maintaining quarrels.^ He may 
also justify an assault and battery committed in defence of 
the persons of his children.^ On the other hand, as we shall 
hereafter see, where he is cruel and devoid of natural affec- 
tion, his children may be taken from his personal keeping ; 
nay, he may be subject to punishment for his own misconduct. 
The doctrine of parental protection seems to have required 
little or no special judicial discussion in modern times. 

§ 235. Duty of Education. — Second. The second duty of 
parents is that of education ; a duty which Blackstone pro- 
nounces to be far the greatest of all these in importance.^ 
This importance is enhanced by the consideration that the 
usefulness of each new member of the human family to 
society depends chiefly upon his character, as developed by 
the training he receives in early life. Not the increase of 
population, but the increase of a well-ordered, intelligent, 

1 1 Bl. Com. 450. bound to eniplo}' counsel to defend the 

2 See 1 Hawk. P. C. 83, cited in 1 suits of his minor ciiildren. Hill v. 
Bl. Com. 450, and n. by Coleridge, Childress, 10 Yerg. 514. 

citing Post. 294, and 2 Ld. Raym. 1498, * 1 Hawk. V. C. 131 ; 1 Bl. Com. 
in opposition to Blackstone's remark. 450. See uifra. 

3 2 Inst. 5G4. But a parent is not ^ 1 Bl. Com. 450. 

318 



CHAP. II.] DUTIES OF PARENTS. § 235 

and honorable population, is to determine the strength of a 
State ; and, as a civil writer observes, the parent who suffers 
his child to grow up like a mere beast, to lead a life useless 
to others and shameful to himself, has conferred a very ques- 
tionable benefit upon him by bringing him into the world.i 
Solon excused the children of Athens from maintaining their 
parents, if they had neglected to train them up in some art 
or profession.2 So intimately is government concerned in the 
results of early training, that it interferes, and justly, too, 
both to aid the parent in giving his children a good education, 
and in compelling that education, where the parent himself, 
and not the child, is delinquent in improving the opportuni- 
ties offered.^ 

Questions of parental, and more particularly religious edu- 
cation arise often in English law under the will of the father. 
It is laid down as the rule, that where one has left no direc- 
tion in his will as to the religion in which his children are to 
be educated, it will be presumed that his wishes were that 
they shall be educated in his own religion.^ Further, that 
the religious education of an infant of fifteen will not be 
changed unless the infant wishes it.^ But no regard is paid 
to the wishes of a child ten years old.^ The father is allowed 
to designate the plan of education to be followed with respect 
to his children after his death. And while, as Lord Cotten- 
ham has observed, he has no power to prescribe a particular 
religion to his child, yet he has indirectly the power of 
effecting his object by the choice of a guardian.''' 

The English courts of chancery have indeed exercised con- 
siderable jurisdiction over the education of minor wards : a 
topic which very seldom engages the attention of American 

1 Puff. Law of Nations, b. 6, cb. 2, 5 Witty v. Marshall, 1 You. & C. N. 
§ 12. C. 68. 

2 Plutarch's Lives; 2 Kent Com. 195. ^ Regina v. Clarke, 7 El. & B. 186. 

3 Under existing statutes a parent And see Hawksvvorth v. Hawksworth, 
may be prosecuted for neglecting to L. K. 6 Ch. 539. 

educate his child. School Board v. '' Talbot v. Earl of Shrewsbury, 18 

Jackson, 7 Q. B. D. 502. L. J. 125 ; Macphers. Inf. 126. See also 

* In re North, llJur. 7, V. C. Bruce ; Hill v. Hill, 8 Jur. n. s. G09. And see 

Macphers. Inf. 555 ; Campbell v. Mac- Fraser Parent & Child, 82. 



kay, 2 Myl & Cr. 34. 



319 



§ 235 THE DOMESTIC RELATIONS. [PART III. 

tribunals. While the penal laws against Roman Catholics 
were in full force in England, it was considered the duty of 
the Court of CJiancery, by analogy to the statute law, to see 
that all infants under its control should be brought up in the 
Protestant religion.^ A case is reported in which Lord Cow- 
per ordered a Roman Catholic girl to be sent to a Protestant 
school, evidently with a view to her conversion.^ With the 
progress of religious toleration came a different rule of prac- 
tice ; and it is now a question whether, under any circum- 
stances, the court would interfere with the testamentary 
guardian, and the infant's religion as designated by the 
father ; indeed, according to many late decisions, the Roman 
Catholic faith appears in this respect as much favored as the 
Protestant.3 But schemes of education, in cases of disa- 
greement among guardians, are still prescribed' in chancery.* 
So the rights of the guardian as judge of the place of his 
ward's education have been sometimes enforced in equity 
against the ward's own wishes.^'' And the courts are disposed 
to uphold the father in his reasonable views against the 
mother's religious convictions, or those of the children them- 
selves.^ Courts of chancery, in short, have jurisdiction to 
superintend the education of infant children. Yet the Eng- 

1 Macphers. Inf. 123; Lady Teyn- Oxford to Cambridge; and upon his re- 
ham's Case, 9 Mod. 40. peated disobedience there went another 

2 Hill V. Filkin, 2 P. Wms. 5. And tarn to carry him to Cambridge, qiiam 
see Blake t^. Leigh, Ambl. 306; Jac. to keep him there. See Macphers. Inf. 
264 n. ; In re Bisliop, Reg. Lib. 1774, 121, 141. ^ 
cited in Macpliers. Inf. 124. •) In several late English cases, where 

^ Talbot V. Earl of Shrewsbury, 18 the young children, under the mother's 

L. J. 125, per Lord Ch. Cottenliam. influence, were likely to become either 

And see Regina v. Clarke, 7 El. & B. Roman Catholics or Atheists, cliancery 

186; Hawksworth v. Hawksworth, L. interposed to carry out- the fatlier's 

R. 6 Ch. 539. But cf. Agar-Ellis v. Las- wishes and bring them under Protest- 

celles, L. R. 10 Ch. D. 49; D'Alton v. ant influence; and this, notwithstanding 

D'Alton, L. R. 4 P. D. 87. a volimtary or judicial separation of 

* Campbell v. Mackay, 2 Myl. & Cr. the parents which had given tlie mother 

34; Macphers. Inf. 555 tlie children's custoily. Agar-ElIis v. 

5 Tremain's Case, Stra, 168 ; Hall v. Lascelles, L. R. 10 Ch. J). 49 ; Besant 

Hall, 3 Atk. 721. In Tremain's case, an in re, L. R. 11 Ch. D. 508. In D'Alton 

"infant" went to O.xford contrary to i'. D'Alton, L. R. 4 P. D. 87, both 

the orders of his guardian, who wished parents had been Roman Catholics, 

him to study at Cambridge. Tlie court and the father afterwards became a 

sent a messenger to carry him from Protestant. 

820 



CHAP. II.] DUTIES OF PARENTS. § 236 

lish courts seem to have acted rather for the purpose of 
securing the control of the child's education to the proper 
person, or upholding the father's wishes, than to make inde- 
pendent regulations of their own according to the child's 
welfare. 1 In this respect, as well as in enforcing the disabihties 
of the law against Roman Catholics and dissenters, chancery- 
was manifestly influenced by^ considerations of national policy. 

Should such a subject come before the courts of this coun- 
try, they might fairly take a different course, more in accord- 
ance with American legislation. Our municipal laws in 
general provide for the infant's educational wants ; and this 
whole jurisdiction is one of great embarrassment and respon- 
sibility. We do not find a leading American case decided 
with direct and sole reference to the education of young chil- 
dren.^ But there are several late decisions concerning the 
right of public school boards to issue general regulations con- 
cerning the admission, suspension, or dismissal of pupils. 
And in some States the father of a child may apply for 
mandamus against the board to compel them to admit to 
the public school his child, who has been unlawfully ex- 
cluded. ^ 

§ 236. Duty of Maintenance in General. — The third parental 
duty is that of maintenance. It is a plain precept of uni- 
versal law that young and tender beings should be nurtured 
and brought up by their parents ; and this precept have all 
nations enforced. So well secured is the obligation of main- 
tenance that it seldom requires to be enforced by human 
laws.* Are we brought into this world to peiish at the 
threshold by suffering and starvation ? No ; but to live and 
to grow. Some one, then, must enable us to do so ; and upon 
whom more justly rests that responsibility than upon those 
who brought us into being? Hence, as Puffendorf observes, 
the dut}^ of maintenance is laid on the parents, not only by 
nature herself, but by their own proper act in bringing the 

1 See 2 Story Eq. Juris. § 1342 ; 3 People v. Board of Education, 18 
Wellesley v. Wellesley. 2 Bligli n. s. Mich. 400. See further, Burdick v. 
124. Babcock, 31 Iowa, 562; Hodgkins v. 

2 See the topic of Custody, infra ; Rockport, 105 Mass. 475. 
Jones V. Stockett, 2 Bland, 409. * 2 Kent Com. 189. 

21 321 



§ 237 THE DOMESTIC RELATIONS. [PART HI. 

children into the world. By begetting them, they have en- 
tered into a voluntary obligation to endeavor, as far as in 
them lies, that the life which they have bestowed shall be 
supported and preserved.^ 

Maintenance is that support which one person gives to 
another for his living. This word, used by common-law 
writers, corresponds with the civil-law term " aliment." ^ 
The obligation on the parent's part to maintain the child 
continues until the latter is in a condition to provide for his 
own maintenance ; and it extends no further, at common law, 
than to a necessary support.^ The Roman system carried this 
obligation so far that it would not suffer a parent at his death 
to totally disinherit his child without expressly giving his 
reasons for so doing.* And the laws of Athens were to the 
same purport.^ Blackstone does not appear to approve of 
carrying natural obligation so far. And he cites Grotius in 
support of a distinction which limits the child's natural right 
to necessary maintenance ; what is more than that, depending 
solely upon the favor of parents, or the positive constitutions 
of the municipal law.^ Coke observes that it is " nature's 
provision to assist, maintain, and console the child." '' 

§ 237. Maintenance at Common Law ; Statute Provisions. — 
The statute 43 Eliz. c. 2, slightl}'- amended by 5 Geo. I. c. 8, 
points out the English policy in this respect. It is provided 
by this statute that the father and mother, grandfather and 
grandmother, of pooi", old, blind, lame, and impotent persons, 
shall maintain them at their own charges, if of sufficient abil- 
ity ; and if a parent runs away and leaves his children, the 
municipal authorities, by summary judicial process, may seize 
upon his rents, goods, and chattels, and dispose of them to- 
ward their relief.^ No person is bound to provide a mainte- 

1 Puff. Law of Nations, I. 4, ch. 11 ; extent. See Mass. Gen. Sts. c. 92, 
1 Bl. Com. 447. §§ 26, 27. 

2 Cf. Macphers. Inf. 210, andFraser ^ 2 Potter Greek Antiq. 351. 
Parent & Child, 85. « Grot. De J. B. et P., L 2, c. 7, n. 

3 2 Kent Com 190 ; 1 Bl. Com. 448. 2; 1 Bl. Com. 448. 

* Dig. 28, 230; Nov. 115, c. 3. The ^ See 2 Kent Com. 190. 
statutes of some of the United States 8 1 Bl. Com. 448 ; Stubb v. Dixon, 

favor this doctrine to nearly the same 6 East, 166 ; Macphers. Inf. 210. These 

322 



CHAP. II.] DUTIES OF PARENTS. § 237 

nance for his issne, except where the children are impotent 
and unable to act, through infanc}', disease, or accident, and 
then is only obliged to fui'nish them with necessaries, the 
penalty on refusal being no more than twentj^ shillings a 
month. " For the policy of our laws, which are ever watch- 
ful to promote industr3%" says Blackstone, " did not mean to 
compel a father to maintain his idle and lazy children in ease 
and indolence ; but thought it unjust to oblige the parent 
against his will to provide them with superfluities, and other 
indulgences of fortune ; imagining they might trust to the 
impulse of nature, if the children were deserving of such 
favors." ^ Lord Eldon, viewing the same subject afterwards 
in the light of equity principles, was differently impressed by 
these penal provisions, and founded the jurisdiction of chan- 
cery upon the very meagreness of the common-law remedies 
against keeping the child from starvation.^ 

The Stat. 43 Eliz. may be considered as having been trans- 
ported to the United States as part of our common law. Its 
provisions have also been re-enacted in man}'- of our States, 
as in New Hampshire, Connecticut, and South Carolina. In 
New York, Massachusetts, and some other States, the pro- 
vision as to grandparents is omitted.^ This feeble and scanty 
provision of statute law was intended, as Kent observes, for the 
indemnity of the public against the maintenance of paupers.* 

In absence of special statutes to the contrary, the father- 
in-law is not obliged in this country to maintain his step- 
children, and consequently is not entitled to their earnings.^ 

statutes did not extend to illegitimates may be regarded as in a state little 

or step-children. Tubb t-. Harrison, 4 better than that of starvation? The 

T. R. 118; Cooper v. Martin, 4 East, courts of law can enforce tiie rights of 

76. But this is changed by Stat. 4 & the father, but they are not equal to 

5 Will. IV. c. 76. the office of enforcing the duties of the 

1 1 Bl. Com. 449 ; Winston v. New- fatlier." Wellesley v. Duke of Beau- 
comen, 6 Ad. & El. 301. fort, 2 Russ. 23 (1827). 

2 "Is it," says he, "an eligible ^ 2 Kent Com. 191, and note ; Dover 
thing that children of all ranks should v. McMurphy, 4 N. H. 162 ; Comm'rs 
be placed in this situation, that they of Poor i'. Gansett, 2 Bail. 320. And 
shall be in the custody of the father J see Haynes' Adra'r v. Waggoner, 25 
although, looking at the quantum of Ind. 174. 

allowance which the law can compel ^ 2 Kent Com. 191. 

the father to provide for them, they ^ Commonwealth v. Hamilton, 6 

323 



§ 237 THE DOMESTIC RELATIONS. [PART III. 

Under the pauper acts, it is held that the father's obligation 
to support his vagabond son, who cannot support himself, does 
not accrue until after legal proceedings have been instituted ; 
and the furnishing of previous supplies constitutes no legal 
consideration to support a new promise.^ Nor is an insane 
mother, herself a pauper, under obligation to support a minor 
child, or entitled to his earnings ; ^ indeed, an adult son, 
under some statutes, is compelled to support his mother.^ 

In general, the legal obligation of the father to maintain 
his child under the common law ceases as soon as the child is 
of age, however wealthy the father may be, unless the child 
becomes chargeable to the public as a pauper.^ And as the 
language of Stat. 43 Eliz. rendered it inapplicable to step- 
children, so does it apply to blood relations only ; and the 
husband is not liable for the expense of maintaining his wife's 
mother,^ nor the father for his daughter's husband; ^ nor a 
man who marries for his pauper step-children.'^ But a quasi 
parental relation may sometimes be established ; and one may 
stand in loco parentis to another, and thus become responsi- 
ble for the maintenance and education of the latter, on the 
principle that the child is held out to the world as part of his 
family.^ 

In a state of voluntary separation, the husband jjrima facie , 
and not the wife, is liable for the support of children living 
with her ; and if the wife be justified in leaving her husband's 
house and taking the child with her, she may pledge his 
credit for the child's necessaries as well as her own, so long 
as he neglects to make reasonable effort to regain the child's 

Mass. 253, 275; Freto v. Brown, 4 ib. Anrlrew r. De Breta, 1 Ld. Ra3'm. 699. 

675; Worcester i;. Marchant, 14 Pick. The father, having a fair capital, 

510 ; Bond v. Lockwootl, 33 111. 212 ; c. may be liable under statute for the 

5, post. support of his adult pauper daughter 

1 Mills V. Wyman, 3 Pick. 207 ; as of " sufficient ability," even though 
Looniis V. Newliall, 15 ib. 159. his income be less tlian his expenses 

2 Jenness v. Emerson, 15 N. H. 486. and liis health infirm. Templeton v. 
And see Sanford v. Lebanon, 31 Me. Stratton, 128 Mass. 137. 

124; Parmington v. Jones, 36 N. II. ^ ]jex v. Munden, 1 Stra. 190. 

271. ^ Friend r. Tiiompson, Wriglit, 636. 

3 Smith V. Lapeer County, .34 Mich. '^ Brookfieldy. Warren, 128 Mass. 127. 
58 ; Dierkes v. Phila., 93 Penn. St. 270. ^ See post, c. .3, as to step-children, 

* 2 Kent Com. 192 ; Parish of St. &c. ; supra, § 232. 

324 



CHAr. II.] DUTIES OP PARENTS. § 2£8 

custody.^ But the wife carries no such agency with her 
when divorced, though it be for the husband's fault, and 
from bed and board only.^ And while in case of either sepa- 
ration or divorce, without orders of custody, the obligation 
in general continues as before, it may be materially affected 
by the special circumstances of each case ; while an award of 
children to the mother should be presumed to carry with it a 
transfer of parental duties, as well as of parental rights.^ 

/But a father, as against the public and his children, cannot, 
it is well settled, escape the duty of providing for the chil- 

' dren's support ; even if they remain with their mother after 
divorce.* 

§ 238. Maintenance, &c., in Chancery ; Allowance from Child's 
Fortune. — We pass from maintenance under statute to chan- 
cery maintenance, a topic considered in connection with edu- 
cation. Maintenance as ordered by courts of equity, or 
allowed in settlement of a trust account, has grown into a 
topic of considerable magnitude, especially under the English 
s3-stem. The rule is, that where an infant has property of 
his own, and his father is dead, or is not able to support him, 
he may be maintained and educated as may be fit, out of the 
income of property, absolutely his own, by the person in 
whose hands the property is held ; and a court of equity will 

^ TJumney v. Kej'es, 7 N. H. 571 ; plerlge the husband's credit for the 

Kimball v. Keyes, 11 Wend. 32; child's reasonable expenses; she hav- 

Walker f. Laighton, 11 Fost. Ill ; Gill ing no adequate means of support. 

V. Kead, 5 R. I. 343. And see Rcy- Bazeley i'. Forder, L. R. 3 Q. B. 559. 

nolds V. Sweetser, 15 Gray, 78 ; Grun- See infra, § 2o9. 

hut V. Rosenstein, 7 Daly, 164. * Courtright v. Courtright, 40 Mich. 

2 Hancock y. Menick, 10 Cush. 41 ; 633; Conn v. Conn, 57 Ind. 323; 
Fitler i>. Fitler, 33 Penn. St. 50; Bur- Thomas v. Thomas, 41 Wis. 229; 
ritt V. Burritt, 29 Barb. 124. Welch's Appeal, 43 Conn. 342 ; Buck 

3 Stanton v. Willson, 3 Day, 37, ap- v. Buck, 60 111. 105. Local statutes 
pears to carry the mother's right much affect this question considerably ; and 
farther ; but its authority is question- the award of alimony is a matter of 
able. We must admit, however, that judicial discretion in divorce suits. 

in a late English case, presenting a When custody of a child is given to 

strong state of facts, a woman who the mother on her divorce from the 

lived apart from her husband for suf- child's father, the latter, having no 

ficient cause, having with her, against riglit to the child's services, is free 

her husband's will, their child, of whom from liability to the mother for the 

a court had given her the custody, was child's maintenance. Husband v. Hus-